Australian Competition and Consumer Commission v Safety Compliance Pty Ltd (in liq) - [2015] FCA 211

FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v Safety Compliance Pty Ltd (in liq) [2015] FCA 211

Citation: Australian Competition and Consumer Commission v Safety Compliance Pty Ltd (in liq) [2015] FCA 211

Parties: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v SAFETY COMPLIANCE PTY LTD (IN LIQ) ACN 144 638 826, DEAN JAMES KING, SHANE JOHN BLACK and FIONA ELLEN SCHIMMEL

File number: NSD 547 of 2012

Judge: FARRELL J

Date of judgment: 13 March 2015

Catchwords:
CONSUMER LAW – telemarketing offers – representation that workplace health and safety equipment required by legislation – misleading or deceptive conduct – contravention of Trade Practices Act 1974 (Cth) s 52 and Australian Consumer Law s 18 – false or misleading representation concerning need for goods – contravention of TPA s 53(f) and ACL s 29(1)(l)

CONSUMER LAW – telemarketing offers – representation that workplace health and safety equipment required by legislation – representation that company was the relevant workplace health and safety agency – contravention of TPA s 52 and ACL s 18 – false or misleading representation that goods were of a particular standard or quality – contravention of TPA s 53(a) and ACL s 29(1)(a)

CONSUMER LAW – telemarketing offers – representation that workplace health and safety equipment required by legislation – representation of affiliation with the relevant workplace health and safety agency – misleading or deceptive conduct – contravention of TPA s 52 and ACL s 18 – false or misleading representation that company had sponsorship, approval or affiliation – contravention of TPA s 53(d) and ACL s 29(1)(h)

CONSUMER LAW – telemarketing offers – representation that workplace health and safety equipment required by legislation – representation that consumer had already agreed to acquire products– misleading or deceptive conduct – contravention of ACL s 18 – false or misleading representation as to agreement to acquire – contravention of ACL s 29(1)(d)

CONSUMER LAW – telemarketing offers – representation that workplace health and safety equipment required by legislation – threat of inspections or fines for non-compliance – no immediate demand for payment – follow up calls –debt recovery letters – need to consider manner and circumstances of a demand or communication – whether conduct amounts to coercion

CONSUMER LAW – accessorial liability – persons who owned or managed company

CONSUMER LAW – remedies – declarations

Legislation: Competition and Consumer Act 2010 (Cth) s 155, sch 2 ss 2, 18, 29(1)(a), 29(1)(d), 29(1)(h), 29(1)(l), 50(1)(a)
Evidence Act 1995 (Cth) ss 97, 140
Fair Trading Act 1987 (NSW) ss 42, 58
Occupational Health and Safety Regulation 2001 (NSW) cl 20
Trade Practices Act 1974 (Cth) ss 52, 53(a), 53(d), 53(f), 60, 64, 75B

Cases cited: Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] ATPR 42-290; [2009] FCA 682
Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472
Australian Competition and Consumer Commission v McCaskey (2000) 104 FCR 8
Australian Competition and Consumer Commission v Optell Pty Ltd (1998) 41 IPR 49
Australian Securities and Investments Commission v Accounts Control Management Services Pty Ltd [2012] FCA 1164
Briginshaw v Briginshaw (1938) 60 CLR 336
Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1
Darwin Bakery Pty Ltd v Sully (1981) 36 ALR 371
Gardam v George Wills & Co Ltd (1988) 82 ALR 41
Giorgianni v R (1985) 156 CLR 473
Given v Pryor (1979) 39 FLR 437
Green v Ford (1985) ATPR 40-603
Hodges v Webb [1920] 2 Ch 70
Janssen Pharmaceuticals Ltd v Pfizer Pty Ltd (1985) 6 IPR 227
Mark Foys Pty Ltd v TVSN (Pacific) Ltd (2000) 104 FCR 61
Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
Pereira v Director of Public Prosecutions (1988) 82 ALR 217
Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177
Yorke v Lucas (1985) 158 CLR 661

Date of hearing: 1 July 2013, 2 July 2013

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 300

Counsel for the Applicant: Mr B Hatfield

Solicitor for the Applicant: Australian Government Solicitor

Solicitor for the First Respondent: The first respondent did not appear

Solicitor for the Second, Third and Fourth Respondents: Mr G Delaney of O’Neills Law

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 547 of 2012

BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:
SAFETY COMPLIANCE PTY LTD (IN LIQ) ACN 144 638 826
First Respondent

DEAN JAMES KING
Second Respondent

SHANE JOHN BLACK
Third Respondent

FIONA ELLEN SCHIMMEL
Fourth Respondent

JUDGE:

FARRELL J

DATE OF ORDER:

13 March 2015

WHERE MADE:

SYDNEY

THE COURT DECLARES THAT:
1.From about June 2010 until at least May 2012, Safety Compliance Pty Limited (Safety Compliance), in trade or commerce, in connection with the supply or possible supply of goods, represented to prospective customers by means of calls made by telemarketers that workplace health and safety laws required businesses to maintain “Workplace Safety Materials”, namely “Workplace Safety and Emergency Procedures Wall Charts” (Wall Charts) or information and materials of the same nature as the Wall Charts when in fact such laws did not so require and thereby:
(a)engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of s 52 of the Trade Practices Act 1974 (Cth) (TPA) in relation to conduct prior to 1 January 2011 and s 18 of the Australian Consumer Law (ACL) set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth), in relation to conduct on and from 1 January 2011; and
(b)made false or misleading representations concerning the need for the Workplace Safety Materials in contravention of s 53(f) of the TPA in relation to conduct prior to 1 January 2011, and s 29(1)(l) of the ACL in relation to conduct on and from 1 January 2011.

2.From about December 2010 until at least May 2012, Safety Compliance, in trade or commerce, in connection with the supply or possible supply of goods, represented to prospective customers by means of calls made by telemarketers and by sending or publishing a form styled a “First Aid Kit, Fire Blanket & Emergency Procedures Chart Order Confirmation” or a “First Aid Kit & Fire Blanket Confirmation” which contained a statement that “Under state and territory legislation ALL WORKPLACES MUST HAVE AT LEAST ONE FIRST AID KIT” that workplace health and safety laws required businesses to maintain a first aid kit of the same nature as the first aid kits offered for sale by Safety Compliance when in fact such laws, other than for New South Wales, did not so require and thereby:
(a)engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of section 52 of the TPA in relation to conduct prior to 1 January 2011 and s 18 of the ACL in relation to conduct on and from 1 January 2011; and
(b)made false or misleading representations concerning the need for the first aid kits in contravention of s 53(f) of the TPA in relation to conduct prior to 1 January 2011, and s 29(1)(l) of the ACL in relation to conduct on and from 1 January 2011.

3.From about June 2010 to at least May 2012, Safety Compliance, in trade or commerce, in connection with the supply or possible supply of goods, namely Workplace Safety Materials by means of calls made by telemarketers:
(a)represented to prospective customers that it was affiliated with the relevant workplace health and safety agency, when in fact it was not, and thereby:
(i)engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of s 52 of the TPA in relation to conduct prior to 1 January 2011, and s 18 of the ACL in relation to conduct on and from 1 January 2011; and
(ii)made false or misleading representations that Safety Compliance had a sponsorship, approval or affiliation in contravention of s 53(d) of the TPA in relation to conduct prior to 1 January 2011, and s 29(1)(h) of the ACL in relation to conduct on and from 1 January 2011; and

(b)represented to prospective customers that it was a relevant workplace health and safety agency when in fact it was not and thereby:
(i)engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of s 52 of the TPA in relation to conduct prior to 1 January 2011, and s 18 of the ACL in relation to conduct on and from 1 January 2011; and
(ii)made false or misleading representations that the Workplace Safety Materials were of a particular standard or quality in contravention of s 53(a) of the TPA in relation to conduct prior to 1 January 2011, and s 29(1)(a) of the ACL in relation to conduct on and from 1 January 2011.

4.In or about November 2011, Safety Compliance, in trade or commerce, in connection with the supply or possible supply of goods, when communicating with a number of store managers of Paterson Group Video Ezy stores in Western Australia by means of calls made by telemarketers, represented that Ms Karen Cleverley of the Paterson Group Video Ezy Head Office or another person at Paterson Group Video Ezy had agreed to acquire Workplace Safety Materials when in fact she had not so agreed, in contravention of ss 18 and 29(1)(d) of the ACL.
5.Mr King was involved in the contraventions of the ACL by Safety Compliance referred to in Orders 1 and 3 above in the period on or after mid April 2011 to at least 15 February 2012.
6.Mr Black was involved in the contraventions of the TPA and ACL by Safety Compliance referred to in Orders 1 and 3 above in the period from June 2010 up to at least 23 August 2011.
7.Ms Schimmel was involved in the contraventions of the ACL by Safety Compliance referred to in Orders 1 and 3 above on and from March 2011 to at least May 2012.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 547 of 2012

BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:
SAFETY COMPLIANCE PTY LTD (IN LIQ) ACN 144 638 826
First Respondent

DEAN JAMES KING
Second Respondent

SHANE JOHN BLACK
Third Respondent

FIONA ELLEN SCHIMMEL
Fourth Respondent

JUDGE:

FARRELL J

DATE:

13 March 2015

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The proceedings relate to the way the first respondent (Safety Compliance) conducted its telesales business from June 2010, selling wall charts depicting workplace health and safety procedures and from about December 2010 selling first aid kits. The target market was small business owners and managers.
The Australian Competition and Consumer Commission (ACCC) commenced these proceedings on 16 April 2012. On 21 September 2012, liquidators were appointed to Safety Compliance. On 17 October 2012, the liquidators informed the ACCC that Safety Compliance would not take part in the proceedings. On 3 December 2012 the Court granted leave to the ACCC to proceed on the basis that the ACCC will not take any step to enforce against Safety Compliance any order which would ultimately require it to pay money without further leave of the Court. The case against Safety Compliance therefore proceeded by way of no contest and it was not represented at the hearing. Mr King, Mr Black and Ms Schimmel (Active Respondents) participated in the proceedings and they were represented at the hearing by the same legal representative.
In accordance with case management orders made before the hearing, the question of contravention and whether the ACCC is entitled to declaratory and injunctive relief is to be determined separately from and before other questions in the proceedings.
BACKGROUND
The wall charts and kits are themselves of no concern to the ACCC.
The ACCC’s essential complaint is that through unsolicited telemarketing calls, Safety Compliance made misleading or false representations to prospective customers by expressly or impliedly telling them that they were required under workplace health and safety laws to have wall charts and first aid kits of the kind sold by Safety Compliance when there was no such requirement, and that Safety Compliance was either affiliated with or was itself a government workplace health and safety agency.
The ACCC says that the combined effect of the representations was to convey the impression to consumers that they had no choice but to agree to purchase those items because someone affiliated with the government was calling them at their business and telling them that they were required to have the items which Safety Compliance was selling. Further, the ACCC alleges that Safety Compliance used threats that the government would enforce these requirements through random inspections and in relation to the collection of debts. It says that the combined effect of the Representations and threats amounts to coercion.
There is also a discrete complaint that a member of Safety Compliance’s staff attempted to trick a number of Video Ezy franchisees to agree to purchase wall charts by telling them that a member of head office staff had already agreed to the purchases. The ACCC has referred to this as the “Agreement to Acquire Wall Charts Representation” but for ease of reference I will refer to it as the “Video Ezy Representation”.
The ACCC says that there were not just isolated incidents but that the whole Safety Compliance business model fostered an environment which facilitated and encouraged representations of the kind of which it complains. The aspects of the business model of concern are the Safety Compliance name itself, the documents provided to sales staff in the performance of their duties and Safety Compliance’s lack of internal systems.
As the conduct and representations complained of span the period before, on and after 1 January 2011, there are alleged contraventions of the Trade Practices Act 1974 (Cth) (TPA) in relation to the period before 1 January 2011 and the Australian Consumer Law (ACL) set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (CCA) in relation to the period on or after 1 January 2011.
Except in relation to the Video Ezy Representation, the ACCC also claims that each of the Active Respondents has accessorial liability for Safety Compliance’s contraventions of the TPA and ACL. The ACCC contends that the Active Respondents were involved in the establishment and management of Safety Compliance’s business and that the scripts (commonly called spiels) used by telemarketers and other documents were obtained, created or settled variously by the Active Respondents.
The Active Respondents say that if Safety Compliance were to be found liable for the alleged contraventions they were not knowingly concerned in the contraventions and mistake, inefficiency or someone doing their incompetent best is not sufficient to reach the standard required for accessorial liability.
ACCC INVESTIGATION
The ACCC issued notices to Safety Compliance under s 155(1) of the CCA on 22 March 2011 and 27 February 2012 requiring the disclosure of information and documents. Documents were provided on 27 April 2011 and 20 March 2012 respectively.
Under notices issued on 18 July, 18 November and 1 December 2011 respectively, the ACCC examined Ms Schimmel on 11 August 2011 and Mr King and Mr Black on 15 December 2011. The Active Respondents relied on the transcript of the s 155 examinations at the hearing and were cross-examined.
Mr Christopher Kent is Mr King’s brother and he was a director of Safety Compliance from June 2010 to 23 August 2011 and Mr King and Mr Black say he invested in it. Mr Kent is not a party to, nor was he a witness in, these proceedings despite his roles with Safety Compliance. Mr Justin Leach, who is a senior investigator in the NSW Branch of the ACCC’s Enforcement Operations, gave evidence by affidavit sworn on 3 September 2012 of futile attempts in October and November 2011 to serve a notice under s 155(1)(c) on Mr Kent personally and through Arcuri Lawyers, the firm which then represented Safety Compliance in relation to the ACCC’s investigation. Mr Leach also gave evidence of one telephone conversation with Mr Kent (who said he was then away) and unsuccessful attempts to follow up until the end of March 2012.
SUMMARY OF CLAIMS MADE BY ACCC
Conduct of telesales staff
The ACCC claims that employees of Safety Compliance made unsolicited telemarketing calls to prospective customers in which they engaged in the following conduct (Conduct). They:
a.identified themselves as being from “Safety Compliance” or used other terminology of an officious nature;
b.made statements to the effect that the call was in relation to workplace health and safety;
c.made statements relating to workplace health and safety legislative requirements;
d.made statements to the effect that those legislative requirements were applicable to the prospective customer;
e.made statements to the effect that those legislative requirements would or could be enforced through inspections by workplace health and safety regulators ; and/or
f.made statements to the effect that the products offered by Safety Compliance (wall charts and/or first aid kits) were authorised or approved or compliant with those legislative requirements.
Wall Chart Representations
The ACCC claims that because of the Conduct in the period from June 2010 to the commencement of proceedings and thereafter up to at least May 2012, Safety Compliance represented to prospective customers that health and safety laws required businesses to maintain information and materials of the same nature as the wall charts offered for sale by Safety Compliance (Wall Charts Representation). The ACCC says that in fact, workplace health and safety laws did not require that and the Active Respondents knew that workplace health and safety laws did not require that.
Government and Affiliation Representations
The ACCC claims that because of the Conduct in the period from June 2010 to at least May 2012, Safety Compliance represented to customers that it was the relevant workplace health and safety agency (Government Representation) or affiliated with such an agency (Affiliation Representation). It says that Safety Compliance was not affiliated with, and was not itself, a workplace health and safety agency and the Active Respondents knew that.
First Aid Kits Representations
The ACCC claims that Safety Compliance sent or published to customers or prospective customers a form styled a “First Aid Kit, Fire Blanket & Emergency Procedures Chart Order Confirmation” or a “First Aid Kit & Fire Blanket Confirmation” (First Aid Kit Order Confirmation Form) which contained a statement that:
Under state and territory legislation
ALL WORKPLACES MUST HAVE AT LEAST ONE FIRST AID KIT
The ACCC claims that because of the Conduct and/or by sending or publishing this form in the period from December 2010, Safety Compliance represented to customers that health and safety laws required businesses to have materials of the same nature as the first aid kits offered for sale by Safety Compliance (First Aid Kits Representation).
The ACCC says that in fact, workplace health and safety laws (other than New South Wales) did not require businesses to maintain information and materials of the same nature as the first aid kits and the Active Respondents knew that. As originally pleaded, the ACCC suggested that the Australian Capital Territory should also be excluded, but the claim was amended to exclude only New South Wales.
Coercion

The ACCC claims that, in the period from June 2010 to at least May 2012, because of the Conduct and from time to time sending letters containing threats to take steps to adversely affect a customer’s credit rating and/or commence legal proceedings unless the customer completed the purchase, Safety Compliance coerced consumers to purchase wall charts or first aid kits and consumers purchased wall charts or first aid kits.
It also claims that the Active Respondents knew that customers purchased wall charts and first aid kits on that basis.
Video Ezy Representation
The ACCC claims that in about November 2011, employees of Safety Compliance made telemarketing sales calls in relation to wall charts to a number of store managers of Video Ezy stores in Western Australia in which they made statements to the effect that Ms Karen Cleverly of the Video Ezy Head Office or another person at Video Ezy had already agreed to the purchase of the wall charts (Video Ezy Representation) when in fact neither Ms Cleverly nor any person at Video Ezy had agreed to the purchase of wall charts.
Position of Safety Compliance
In the Fast Track Response, Safety Compliance admitted that:
·telesales staff did identify themselves as being from Safety Compliance;
·from December 2010 its employees sent or published the First Aid Kit Order Confirmation Form containing the statement quoted at [18] above;
·in fact workplace health and safety laws (other than New South Wales and the ACT) did not require businesses to maintain a first aid kit of the same nature as the first aid kit offered for sale by Safety Compliance; and
·in about November 2011, employees of Safety Compliance made calls to a number of store managers of Video Ezy stores in Western Australia in relation to the sale of wall charts;
but otherwise did not admit the ACCC’s claims.
ALLEGED CONTRAVENTIONS BY SAFETY COMPLIANCE
The Fast Track Statement claims that each of the pleaded Representations is misleading or deceptive conduct in contravention of s 52 TPA/s 18 ACL, however, the ACCC’s application seeks declarations to that effect only in relation the Wall Chart Representation, the First Aid Kit Representation and the Affiliation Representation. The ACCC conducted its case on the basis set out in the Fast Track Statement.
In addition, the ACCC seeks declarations, pecuniary penalties and other orders against Safety Compliance for conduct which it alleges occurred in trade or commerce in connection with the supply or possible supply of goods in Australia as follows:
a.The Wall Charts Representation and the First Aid Kits Representation: under s 53(f) TPA/s 29(1)(l) ACL for making a “false or misleading representation concerning the need for any goods” in connection with the wall charts and the first aid kits respectively;
b.The Affiliation Representation: under s 53(d) TPA/s 29(1)(h) ACL for making a false or misleading representation that the corporation has “a sponsorship, approval or affiliation”;
c.The Government Representation: under s 53(a) TPA/s 29(1)(a) ACL for making a false or misleading representation that the wall charts and/or the first aid kits were of a particular standard or quality by representing that Safety Compliance was the relevant workplace health and safety agency when it was not;
d.The Video Ezy Representation: under s 29(1)(d) ACL for making a “false or misleading representation that a particular person had agreed to acquire goods”; and
e.Using coercion in connection with the supply or possible supply of goods in contravention of the prohibition under s 60 TPA (in relation to consumers)/s 50(1)(a) ACL.
ALLEGED INVOLVEMENT OF ACTIVE RESPONDENTS
The ACCC claims that, except in respect of the Video Ezy Representations, Mr King and Mr Black aided, abetted, counselled or procured or were directly or indirectly knowingly concerned in or party to the alleged contraventions of the TPA and ACL by Safety Compliance and were therefore involved in the contraventions within the meaning of s 75B TPA/s 2 ACL. The same claim is made in relation to Ms Schimmel but only under the ACL in relation to the period on or after 1 January 2011. The Active Respondents do not admit these claims.
The ACCC seeks orders disqualifying the Active Respondents from managing corporations and pecuniary penalties.
In the Fast Track Statement, the ACCC claims that the Active Respondents were involved in Safety Compliance’s conduct because of the knowledge of Mr King, Ms Schimmel and Mr Black as set out at [16], [17], [20] and [22] above and their roles as set out in [30], [32] and [34] below. The Active Respondents do not admit the knowledge attributed to them in the Fast Track Response referred to in [16], [17], [20] and [22].
The ACCC’s case is that through companies and trusts he owns and controls, Mr King deliberately shielded himself from any directly visible role in Safety Compliance, using his brother, Mr Kent, as the director of Safety Compliance and their nephew, Mr Black, as its manager. The ACCC claims that from June 2010 Mr King:
·arranged for the establishment of Safety Compliance and provided funding for and investment into Safety Compliance;
·assisted in developing the initial business plan for Safety Compliance and was consulted on a number of occasions on the conduct of Safety Compliance’s business;
·prepared, reviewed, approved and provided consultation on materials used in sales by Safety Compliance; and
·was the sole director of Wotam Holdings Pty Ltd (Wotam) and Wotam was the sole beneficiary of the Safety Compliance Trust, the owner of the premises out of which Safety Compliance conducted its business, the recipient of regular payments from Safety Compliance and until 15 February 2012, the sole shareholder of Safety Compliance.
Mr King does not admit or denies most but not all of these allegations.
The ACCC claims that from June 2010 to at least December 2011 Mr Black:
·assisted in developing the initial business plan for Safety Compliance;
·assumed responsibility for the preparation, review and approval of materials used in sales by Safety Compliance;
·reviewed and approved debt collection letters used by Safety Compliance;
·had or assumed day to day management responsibilities for Safety Compliance;
·was one of the persons to whom employees reported, including Ms Schimmel, including in relation to complaints regarding the conduct of Safety Compliance; and
·provided support services to Safety Compliance through his company, Executive Marketing Solutions Pty Ltd (Executive Marketing Solutions).
Mr Black admits these allegations other than that he assumed day to day management responsibility for Safety Compliance which he says was attended to by Ms Schimmel.
Ms Schimmel admits that:
a.She was employed by Mr Black as a member of Safety Compliance’s telesales staff in June 2010 after responding to a job advertisement; she says she had no previous involvement with any of Mr Kent, Mr King or Mr Black.
b.She became the sales manager in March 2011 and was employed as such until at least July 2012 (the date of the Fast Track Response). No one had that position before her; she says that Mr Black did any necessary supervision. In that role she:
·had responsibility for overseeing the telesales team and keeping them focussed;
·assumed day to day management responsibilities at Safety Compliance;
·assisted in the preparation, review and approval of materials used in sales by Safety Compliance; and
·prepared, or assisted in preparing, the complaints handing processes regarding the conduct of Safety Compliance.
c.She became the sole director and secretary of Safety Compliance on 23 August 2011, replacing Mr Kent. She became the sole shareholder in February 2012 replacing Wotam.
FORMATION AND OPERATION OF SAFETY COMPLIANCE
Before June 2010, premises at 23 Corporation Circuit Tweed Heads (Premises) were occupied by Australian Workplace Services (AWS) from which it conducted a telemarketing business selling first aid kits and workplace safety equipment. AWS paid Wotam rent of $500 per week.
Mr King admits that:
·The Premises were owned by Wotam. Mr King was the sole director and shareholder of Wotam.
·Mr King is also known as Dean Kent. Mr Black is the nephew of Mr King and Mr Kent. Mr Black and Mr Kent had a business operated by Executive Marketing Solutions which had offices located near the Premises.
·When AWS vacated the Premises he found first aid kits, spiels (perhaps one or two), wall charts, invoices, bank statements with credit card transactions and other documents from which it appeared that AWS’s telemarketing business had been profitable (without knowing what its overheads were) and he formed the view that workplace safety materials filled a business need. I note that these materials were not provided to the ACCC in response to its notices.
·Mr King brought the AWS materials to Executive Marketing Solutions’ offices to show Mr Kent and Mr Black as an idea for a business on the condition that the Premises would be used for the conduct of any business developed from the idea. He says that he did not have the time to pursue the opportunity because he was involved in his then company, Promo Direct Pty Ltd.
·It was agreed that Safety Compliance would lease the Premises from Wotam for $1,000 per week and Mr King says that getting the rent was his prime motive.
Mr King denies having discussions with Mr Kent and Mr Black about how Safety Compliance would be run. Mr King says it was unnecessary to do so because each of them had experience in running telemarketing companies. The understanding was that it would follow the same “pitch” as AWS. Mr King commented that it did not involve “rocket science” – it was just ringing up businesses and asking if they wanted to buy a product – helping them to be more aware of safety in their workplace.
It is uncontentious that Mr King, Mr Kent and Mr Black went to Mr King’s accountant to set up a company to operate the business. Safety Compliance was registered on 16 June 2010. An extract from the register maintained by the Australian Securities and Investments Commission records that Mr Kent was its sole director and secretary, its principal place of business was at the same address as given for Mr Kent’s residential address and Wotam held the only issued share “non-beneficially”. Safety Compliance’s registered office was the same as Wotam’s address. Mr Black says the name “Safety Compliance” was Mr Kent’s idea.
Mr King admits that he invested $10,000 (by way of loan) to assist in the start-up of Safety Compliance and says that his brother invested the same amount. That accords with Mr Black’s understanding.
Mr King’s evidence to the ACCC was that:
I’m not saying that I had no knowledge [that through Wotam he was the sole shareholder of Safety Compliance]. When it was set up … because I took Shane [Mr Black] and Chris [Mr Kent] to my accountant’s office to set it up – my accountant put me as a shareholder of that business, as I said, so I could be safeguarded for that $10,000. I forgot that I was a shareholder of it, because I had no participation in the business. My only concern was … getting rent from … the factory that they were leasing. So that $10,000 I was going to put into it, I knew I was going to get that back, and my factory was going to be leased, because it was vacant.
At the hearing he strongly resisted the suggestion that he “took” Mr Kent and Mr Black to his accountant to set up Safety Compliance so that they could operate it on his behalf.
Mr King denies any intention to create a sham. He said that he instructed the accountant to protect his investment which the accountant did by issuing the only share in Safety Compliance to Wotam. He denies understanding that because of that he had power to appoint and remove Mr Kent as the sole director and control the affairs of Safety Compliance. He says he does not know why Mr Kent was not a fifty-fifty shareholder, given his equal investment. Mr King told the ACCC that Mr Kent “had more control” by reason of being signatory to Safety Compliance’s bank accounts. Mr King suggests that he had a limited understanding of directors’ duties (referring to tax, competition and fair trading obligations of directors) but denied understanding that directors’ obligations prohibited a director from taking money from a company. Although he initially denied much experience with companies, he ultimately admitted that he was a director or shareholder of six or seven private companies, as disclosed by an ASIC search.
He says he does not know why he would be named as the settlor of the Safety Compliance Trust; he attributes the existence of that trust to the accountant’s action to secure his $10,000 investment in Safety Compliance. Mr King denied knowledge that he is the settlor of the Safety Compliance Trust or what a “settlor” is or of how that trust operates including whether it has anything to do with the operations of Safety Compliance.
It appears that Safety Compliance is the trustee of the Safety Compliance Trust since “The Trustee of the Safety Compliance Trust” is the registered owner of the domain for the Safety Compliance website. The Australian Business Number for the Safety Compliance Trust is the same as Safety Compliance’s ABN.
The trust deed for the Safety Compliance Trust is not in evidence. It is therefore unclear whether either or both of Mr Kent and Mr Black were beneficiaries of the Trust. In the Fast Track Response, Mr King admits that Wotam is trustee of the Kent Discretionary Trust, that in that capacity Wotam was the principal beneficiary of the Safety Compliance Trust and the beneficiaries of the Kent Discretionary Trust are himself and his two children.
Mr Black says that he was attracted to the idea of selling workplace safety materials and thought: “Great concept. It just needs to be done a little bit better.” He was not financially able to invest in Safety Compliance so he agreed to be the person who “does the running around” and help with “organising the staff”. He said: “I’m always looking at new ventures. I want to try and get ahead in life. I’m trying to be a businessman myself.” The reason he did not mind working was that he believed that the position would be re-evaluated in twelve months or so. He said: “We all hoped to benefit from it at some stage.” He acknowledged that Mr King was getting something out of it by getting the Premises rented.
Mr Black denies that he sought to minimise Mr King’s role. Instead, Mr Black sought to position himself as acting under the direction of Mr Kent; he acted in Mr Kent’s absences. He believed that Mr Kent was the director and shareholder of Safety Compliance and he would talk to Mr Kent and “run things by” him. He had “a whinge” to Mr King when Ms Schimmel was appointed (he thought by Mr Kent) to replace Mr Kent as director in August 2011. Following the issue of a notice by the ACCC in late 2011, he was told by Mr King that a company controlled by Mr King was the shareholder of Safety Compliance. In December 2011, Mr Black acknowledged he had no ongoing role with Safety Compliance and the possibility that he had been “left out in the cold”.
He says he does not understand company structures despite being a director of Executive Marketing Solutions and having been involved in some other businesses. He left school in year 8. He says he had no knowledge of how the “Trustee of the Safety Compliance Trust” came to be the registered owner of the domain for the Safety Compliance website.
Mr King denies that he had any active involvement in the operations of Safety Compliance or in the preparation, review, approval or consultation of the materials used in sales by Safety Compliance. Ms Schimmel says that the only instances of Mr King visiting Safety Compliance at the Premises occurred when the air conditioning and plumbing malfunctioned.
Mr King admits that he had occasional casual conversations about Safety Compliance with Mr Black at social occasions; indeed they saw each other socially most days. Mr King says that the conversations were in general terms about how to conduct a telemarking business based on his long experience in telemarketing and his general business acumen. The conversations included how to encourage and motivate people and how to make sales through telemarketing.
Mr Black admits that he spoke to Mr King on a range of topics but says that it was not at Mr King’s instigation. Topics discussed included how to make the wall charts better, strategies for motivating staff and financial performance. He denies discussing staffing levels. He says he consulted Mr King’s advice as his uncle and as a successful business man. Mr King also referred to Mr Black a person who was “becoming an OH&S officer” to assist him in his research of emergency procedures and a person who could assist Mr Black in building a data base for Safety Compliance.
Mr Black denies that he sent an email from [email protected] to an officer of the ACCC on 29 April 2011 which stated: “Mr Kent is not involved in the day to day operation of the company. Shane Black is the General Manager of the business.” He says Mr Kent told him that that is what he told the ACCC, although he did not know that Mr Kent had signed Mr Black’s name to the email.
Mr Black denies that he assumed day to day management responsibility for Safety Compliance or had any formal role in the company. He says that that was Ms Schimmel’s role. Mr Black says he received no wages from Safety Compliance but that he did receive some recompense for his time and outgoings such as fuel. He also received refunds of some expenses outlaid on Safety Compliance’s behalf such as topping up wages when there was insufficient money to pay them and for printing wall charts. Executive Marketing Solutions provided some accounting and clerical services to Safety Compliance; it was paid $25,000 by Safety Compliance.
Mr Black concedes that initially he was “the main person in charge”. Ms Schimmel’s evidence given in August 2011 is that Mr Black was an “overseer” and attended at the offices of Safety Compliance daily although he was not there all day. Mr Black agrees that until 23 August 2011, he was the “responsible person” and if Ms Schimmel had an issue, she would take it to him and he would take it to Mr Kent. Until Ms Schimmel became a director of Safety Compliance on 23 August 2011, Mr Black was the signatory to the bank account (in Mr Kent’s absence) and responsible for paying accounts such as wages and rent and monitoring cash flow.
Mr Black explains Ms Schimmel’s appointment as director of Safety Compliance on 23 August 2011 on the basis that Mr Kent formed the view that the business was going downhill and was not viable; Mr Kent said that he had no money to throw into it and then the “whole ACCC thing came about”. Ms Schimmel and Mr Black believed in the business and she wanted to continue with it. Mr Black was not aware of whether Ms Schimmel invested money at that time, but thought not. However, as director, she took over paying accounts. Mr King denies knowing how this came about. There is no evidence of the source of funds out of which Ms Schimmel paid accounts.
There is also no evidence of the terms on which Wotam transferred its share in Safety Compliance to Ms Schimmel on 15 February 2012 or whether Safety Compliance conducted its business as trustee of the Safety Compliance Trust thereafter. It is therefore unclear whether the change in ownership of shares in Safety Compliance which occurred in February 2012 had any bearing on who might have expected to benefit from any profit made by that business after that time.

It is difficult to gauge the extent of Mr Kent’s involvement in Safety Compliance other than the fact that he was a director until August 2011. The evidence is:
·Messrs King and Black say Mr Kent invested $10,000, presumably as a loan, but the basis is not clear.
·Mr Kent did not do much because he was overseas for six to eight months a year and was semi-retired.
·Ms Schimmel saw Mr Kent approximately four times between June 2010 and August 2011, if that. Mr Black says that to his knowledge Mr Kent never visited the Premises.
·Mr Black would talk to Mr Kent and “run things by” him.
·It was unnecessary for Mr Black and Mr Kent to speak about Safety Compliance’s business regularly as “it just basically [ran] itself”.
SAFETY COMPLIANCE’S BUSINESS
Sales method
Ms Schimmel described the sales method employed by Safety Compliance as follows:
a.Safety Compliance marketed wall charts and first aid kits to prospective customers throughout Australia through unsolicited telemarketing calls;
b.Telesales staff members were supplied with a spiel and a weekly list of “leads” targeting small businesses throughout Australia which they were required to work their way through. They were remunerated on a minimum rate of $18 per hour. If they sold 40 charts per week, they received a bonus of $50 and if they sold 50 charts their hourly rate moved to $20 and they received a $100 bonus;
c.If a person purchased a wall chart or first aid kit as a result of a telephone call, the staff member would tell Ms Schimmel;
d.At least from March 2011 (when Ms Schimmel became sales manager) she would make “telecheck” calls to confirm the sale. After that process became too time-consuming (in approximately July 2011), she would send a fax or email with information confirming the order. Mr Black says that before Ms Schimmel’s appointment, he would perform the follow up calls, however, there is no documentary evidence to support this claim; and
e.The wall chart or first aid kit would be sent by post to the customer with an invoice for payment.
Sales staff
When Ms Schimmel was first employed in June 2010, telesales staff received no training; they were given a spiel relating to wall charts and a telephone.
From the time of her appointment as sales manager, telesales staff members were given sales training but at no time were they given occupational health and safety training. As Ms Schimmel described it, their training was from a sales perspective and comprised the Wall Charts Spiel (see [165] below), how to conduct themselves and speak clearly and to direct customers to government websites for occupational health and safety related questions and the Official Warning (see [190] below).
Telesales staff had a copy of the Wall Charts Package (see [62]-[64] below) and from December 2010 a copy of a First Aid Kit Order Confirmation Form (see [224] below).
From early 2011, the cubicle signs referred to at [192] below (Cubicle Signs) were placed in each telesales staff member’s cubicle.
Wall Charts Package
There were a number of documents sent to a customer who ordered a wall chart. The “package” (Wall Charts Package) included: the wall chart (see [63]); a single page “CPR Chart” demonstrating steps for cardio-pulmonary resuscitation; a single page “Workplace Fire Escape Plan” with a grid for drawing the escape plan; a single page “Staff Training Attendance Sheet”; and an invoice. From December 2010, the package also included the First Aid Kit Order Confirmation Form (see [224] below).
The wall charts offered for sale by Safety Compliance comprised 10 A4 pages which were spirally bound. The original format used by Safety Compliance was:
·The cover page entitled “Workplace Safety & Emergency Procedures Wall Chart”. Originally, this page had a list of State and Territory agencies responsible for workplace health and safety headed “TO REPORT INCIDENTS OR SITUATIONS IN THE WORKPLACE”;
·“Emergency Procedures” with information in relation to reporting an emergency and an emergency evacuation procedure;
·“Fire Extinguisher Operation” with instruction on that topic;
·“Safety Equipment Location” with a table for listing safety equipment and specifying location. It also provided a checklist for the contents of the first aid kit;
·“Sun Protection in the Workplace” with a “slip, slop, slap” message;
·“First Aid Treatment for Sprains and Strains” information;
·“First Aid Treatment for Eye Injuries” information;
·“First Aid Treatment for Burns” information;
·“First Aid Treatment for Wounds and Bleeding” information; and
·“Incident Injury Report” which is a formatted page for the name of the person injured, the injury, how it happened, whether medical treatment was required and provision for it to be signed and dated.
The wall chart appears to have changed over time, though generally not substantially. For instance, one version appears to have included a page dealing with lifting heavy objects. A more substantial change was made when the list of government agencies was moved from the front page to the back: see [202] below.
Payment follow up
If payment was not made by a customer, the customer was contacted by telephone by an employee who dealt with accounts. Safety Compliance claims that it pursued a “normal business debt recovery process”. Mr Black admits that that included sending out the debt recovery letters set out at [255] and [256] below.
EVIDENCE OF SMALL BUSINESS WITNESSES
The ACCC relied on affidavit evidence from small business owners in New South Wales, Queensland, Victoria and Western Australia who say that they were contacted by Safety Compliance. The ACCC also relied on affidavits of officers of Paterson Group Video Ezy at its head office and three franchisees in Western Australia. No objection was taken to the affidavits and the witnesses were not required for cross-examination.
Ms Maija Moore
Ms Maija Moore is a beauty therapist in Queensland. A company owned by Ms Moore and her husband operates a business known as “Nail Perfection”. It is a mobile business and Ms Moore visits clients at either their home or another location.
Ms Moore’s evidence is that on 16 December 2010, she received an unsolicited telephone call from a male caller to her mobile telephone (the number which appears in the Yellow Pages telephone directory) and a conversation to the following effect ensued:
Caller: Hi, I’m calling from _______. All workplaces are now required to display workplace health and safety procedures information.
Me:I don’t have a regular workplace as I’m a mobile service so will not be able to display the information.
Caller:It doesn’t matter as all businesses are now required to have this information. The government is cracking down on this legislation and will be conducting random checks with fines being issued if the information is not displayed.
Me:I don’t have anywhere to keep this.
Caller:Well you can keep and display the information in your car. The information and display materials will be posted to you with an invoice. The cost is $50.
Me:I may as well put $50 in my glove box.
Caller:The government is going to enforce the legislation and fines will definitely be issued to those not displaying the required materials.
Me: Is this a state or federal government initiative?
Caller:It’s federal government. You’ll receive the information in the mail soon with an invoice enclosed.
Ms Moore says that from the reference to “Workplace Health & Safety” and to the government cracking down on the requirement to keep health and safety information on display, she formed the view that the caller was from a government occupational health and safety department or agency.
On 23 December 2010 Ms Moore received a parcel in the mail with no name of the sender on the parcel and no return address. It contained a spiral bound flipchart and loose A4 documents bearing the name Safety Compliance Pty Ltd which included a staff training attendance sheet, a check list of responsibilities at the workplace, a First Aid Kit Order Confirmation Form, and a tax invoice for materials received. The tax invoice was for $58.95, which Ms Moore said surprised her because it was more than she had been quoted on the telephone.
Ms Moore was suspicious of the sender’s address and decided to make further enquiries. She contacted her local member and the Queensland Office of Fair Trading. She did not pay the invoice.
Ms Ingeborg Bayer
Ms Ingeborg Bayer works as the art director of Bayer Studio which is a graphic and fine art business operated in partnership with her sister in Maryborough, Queensland. It is operated from her home. Ms Bayer has had a number of management roles and she served with the Australian Federal Police for 14 years.
Her evidence is that on 26 November 2010 she received a telephone call on her landline which is listed in the Yellow Pages directory for her business. She had a conversation to the following effect:
Melissa:Hi this is Melissa. I’m from Safety and Compliance and I’m ringing up to let you know about the new law that’s come in whereby every business must be compliant and have these new safety wall charts in the premises.
Me:But I work from home and it’s just my sister and I. Why would I need that?
Melissa: I understand what you’re saying. I just spoke to a taxi driver the other day and unfortunately he had to have one too.
Me:You’ve got to be kidding me! I don’t even get members of the public coming here.
Melissa: It’s $49.50. I’ll send you out the package.
Me:Well, if I have to have it, I have to have it.
Ms Bayer said she bought the safety wall chart because she thought it was a legal requirement and she had no choice. She said she was particularly persuaded that she was required to have it in order to comply with government regulation because of Melissa’s comment that even a taxi driver needed to have it.
Some time in December 2010 Ms Bayer received a parcel containing an invoice for $58.95 from Safety Compliance, a flipchart and loose sheets of photocopied pages which included a “Staff Training Attendance Sheet”, a “Responsibilities in the Workplace Checklist” and the First Aid Kit Order Confirmation Form. She put it to one side.
A couple of weeks later, Ms Bayer received a follow-up phone call from a person who identified himself as “Brian from Safety Compliance” in relation to the invoice and material sent to her. Ms Bayer asked for another invoice. Two days later she received a further follow-up call from “Brian”. She then received a further invoice.
Around 15 March 2011, Ms Bayer received the latest edition of the newsletter called “Club Training” which warned businesses to beware of callers who contact them about a requirement to display OH&S posters. She then rang the Queensland Office of Fair Trading. In April 2011 she returned the materials to Safety Compliance and advised them that she had made a complaint with the Office of Fair Trading.
On 13 May 2011 she received a letter from Safety Compliance in the form of a Final Demand Notice: see [256] below. The notice indicated that failure to pay within 14 days would result in the commencement of legal action and Ms Bayer would be liable for all costs or charges incurred in recovery of her debt. It also said:
A default notice will be lodged with Baycorp Advantage Group and your future applications for credit with any organisation (including banks and credit unions) will be adversely affected.
Ms Bayer was very concerned about the contact from Safety Compliance and the threat to report the business to Baycorp Advantage as a bad debt because of its possible impact on her future capacity to raise finance. As a result she contacted the Queensland Office of Fair Trading and BayCorp Advantage.
Ms Bayer received a message on her mobile phone on 19 May 2011 from a person who identified herself as Tracey from Safety Compliance apologising and acknowledging receipt of Ms Bayer’s letter and saying that they had not realised that she had returned the materials.
Ms Heather Olden
Ms Heather Olden, with her husband, operates Phoenix Patios and Outdoor Centre in Beaconsfield, Western Australia. The business is owned by a company of which they are both shareholders and directors.
Ms Olden says that in early 2011 she received a telephone call on her business landline as follows:
Caller:Hi this is Sharyn. I’m from … Safety … I’m ringing to see if you got these required signs on display at your business. You are required to have a fire safety sign displayed in your warehouse and accident prevention signs displayed in your outdoor centre.
Me:Well what kind of signs are these?
Caller:They provide information about fire and safety and how to comply with the workplace requirements.
Me:Is it legal? Do I have to have these signs?
Caller:Yes. There will be inspectors who will come round and check that the signs are displayed.
Me:Well how much are they?
Caller:About $75 and we will mail them up to you.
Me:Okay, send them out.
Ms Oldham says that because Sharyn described where she came from by using words to the effect of “fire and safety” and because she referred to complying with workplace requirements, she formed the belief that Sharyn was from a government department or authority and there was a legal obligation to have the signs in the workplace so that she felt obliged to purchase the materials in case an inspector came around.
Ms Olden received a package on 14 March 2011. It included an invoice for $65.95 in the name of “Safety Compliance Pty Ltd”. The parcel also contained a CPR Chart, a Workplace Fire Escape Plan, a spiral-bound book entitled “Workplace Safety & Emergency Procedures Wall Chart”, a “Responsibilities in the Workplace” form, a “Staff Training Attendance Sheet” and a First Aid Kit Order Confirmation Form.
Ms Olden was suspicious and spoke to both WorkSafe WA and wrote a letter of complaint to the Queensland Office of Fair Trading enclosing materials supplied by Safety Compliance.
On or about 21 March 2011, she received a phone call from a person who said they were calling from Safety Compliance in relation to the outstanding invoice and material sent to her. Ms Olden informed them that she knew that she was not legally obliged to have fire and safety material, that she would not pay and that she had forwarded the material to the “appropriate people”.
Ms Alexia Elson and Mr Andrew Elson
Ms Alexia Elson and Mr Andrew Elson run a family mechanics business known as Toowoomba Engine Centre in Toowoomba, Queensland.
Ms Elson says that in late October or early November 2010 she received a call on her business landline and had a conversation to the following effect:
Caller:Hi, it’s ___________ from Safety Compliance and I’m calling to tell you about the changes to the occupational health and safety laws requiring all workplaces to have visible information about workplace health and safety.
Me:Yes.
Caller:Due to new government legislation, businesses must have government compliant information about occupational health and safety.
We have authorised workplace health and safety compliant materials that we are sending to businesses to ensure that they comply with the law. In the event Workplace Health and Safety Queensland conducts an audit of your workplace, your business will have the correct information that is required by law.
We will post it out to you with an invoice and you can pay us when you receive it. Do you want us to send you one for your business?
Me:Yes.
Ms Elson says that based on the caller’s references to “occupational health and safety” and “workplace health and safety” in the conversation, she believed that Safety Compliance was contracted by Workplace Health and Safety Queensland to provide the materials to businesses and that her business was required to have the materials in order to comply with the legislative requirements.
In early December 2010, she received an envelope that contained a wall chart, a First Aid Kit Order Confirmation Form, a “Responsibilities at the workplace” information sheet, a staff training attendance sheet, a CPR chart, a fire plan and an invoice for $58.95 from Safety Compliance.
Ms Elson formed the view that the materials were of poor quality and did not look like they came from the government. She showed them to her husband.
On 7 March 2011 she received an email from the Motor Traders Association of Queensland alerting her to what they described as a telephone scam involving the selling of occupational health and safety materials to businesses. Based on that she lodged a complaint with the Office of Fair Trading in Queensland. She did not pay for the materials.
In early June 2012 Ms Elson says that she received a call on her business landline from a man who identified himself as being from Safety Compliance. He said to her:
Hi, it’s____________ from Safety Compliance. Are you aware, workplace laws are changing all the time. Therefore, you will need to make sure that your business is compliant. We have up to date workplace health and safety materials that contain information to assist businesses comply.
Ms Elson told him that he was not selling a legitimate product and that she did not want it. She has had no further contact from Safety Compliance.
Mr Elson also deposed to receiving a phone call in or around December 2010 from a person calling in relation to the “workplace safety package that we sent you”. Mr Elson said that he was not sure why it had been sent to them and the caller replied “every workshop is required to display the health and safety information”. Mr Elson said that he challenged the caller and then hung up. He has received no further contact from Safety Compliance.
Ms Judy Houghton
Ms Judy Houghton is the office manager of Bringelly Quality Meats, a butcher in Hoxton Park, New South Wales.
Ms Houghton says that in about October 2010, Bringelly Quality Meats purchased safety signs. She handles the paperwork for the shop and when she checked the accounting program which recorded the invoice for the signs she saw that it was paid to an entity called “Safety Compliance”.
Ms Houghton says that the purchase was authorised by the office manager, Mr Darren Grimes, and she became aware of it when a package arrived. When she asked what the signs were for, Mr Grimes said that the shop had to have them. The safety signs were installed in a prominent position.
On 2 May 2012, another employee received a call which was passed to Ms Houghton and she had a conversation to the following effect:
Caller:Under the government legislation, you have to display all the charts. If you do not have them, you will be fined. The charts will be current for five years.
Me:Well if it’s the legislation I suppose I better have them. I don’t want to be fined.
Caller: The charts will come within 5-10 working days. You will pay for them when you receive them.
Later that day she received a fax confirmation notification from Safety Compliance.
Ms Houghton then made a telephone call to the New South Wales Food Authority (the regulatory body with which the shop most often dealt) who directed her to WorkCover. She spoke with a person at WorkCover and sent a copy of the fax from Safety Compliance to them. She decided not to purchase the materials. She called the number for Safety Compliance and asked them to ring her back but they did not return her call.
In late May 2012 she received a package from Safety Compliance in the mail. She did not remove the materials from the envelope but the size and shape was consistent with the Safety Compliance signs which had already been installed. She made a small incision in the package, inserted in note advising Safety Compliance not to ring the shop again and returned the package by mail to Safety Compliance’s address at Tweed Heads. She did not pay for the materials.

A short time later an employee of the shop told Ms Houghton that Safety Compliance had called requesting payment. Ms Houghton rang Safety Compliance because she wished to question them about the legislative basis for the safety signs. She had a conversation to the following effect:
Rep: Safety Compliance, how can I help you?
Me:This is Judy Houghton from Bringelly Meats. We have returned the safety signs you sent us so stop chasing us up for the money. WorkCover has told me it is not a requirement to have the materials you have sent us. Where in the legislation does it say the signs are required?
Rep: There are 300 pages. I can’t tell you where, you should look it up.
Ms Nicole Pollard
Ms Nicole Pollard operates her own business as a hairdresser which trades as “Hair with Nicole” at Warrnambool, Victoria.
Ms Pollard says that around 18 July 2011 she received a telephone call to the following effect:
Caller:Hi my name is Marilyn Smith. Are you aware that workplace health and safety laws require businesses to have certain workplace health and safety materials?
Me:What kind of health and safety information are businesses required to have?
Caller:Under the workplace laws, business must have on display health and safety information including a fire evacuation plan, CPR chart and compliant first aid kit. It is also recommended for businesses to have a fire safety blanket.
Me:Am I required by law to have all these?
Caller:Yes. It is a legal requirement under WorkCover for your salon to have a wall chart with up-to-date health and safety information, a fire evacuation plan, a CPR chart and a compliant first aid kit. It is precautionary for businesses to have a fire safety blanket.
We have the latest wall charts with up-to-date health and safety information and compliant first aid kits and fire safety blankets that businesses can purchase to ensure that they comply with the legal requirements.
Me:How much is it?
Caller:If you purchased the wall chart, fire blanket and first aid kit you will only have to pay $171.00 instead of $207.90. Also you will be able to claim the purchase back on tax.
I can pop these in the post with an invoice and you can pay when you receive the items.
Me: OK.
On the basis of Ms Smith’s reference to “workplace health and safety”, the content of the conversation and her tone throughout, Ms Pollard formed the belief that she was calling from a government agency. Ms Pollard says she felt compelled to purchase the wall chart, fire safety blanket and first aid kit because she believed that it was required under workplace health and safety legislation and because of Ms Smith’s use of terms such as “must have” and “legal requirement”.
Ms Pollard received a package in the mail around 25 July 2011. The package included a spiral bound flipchart, some loose A4 documents as well as a fire safety blanket and a green canvas first aid kit. It included an invoice for $207.90 from “Safety Compliance Pty Ltd”. Ms Pollard called Safety Compliance querying the invoice for $207.90. She was told that it would be acceptable for her to pay $171, which she did. She has had no further contact from Safety Compliance.
Video Ezy
Paterson Group Video Ezy is a video hire franchise business that has 15 store locations across Western Australia. Its head office is in Hillarys in Perth.
Mr Christopher Jones
Mr Jones is the assistant manager at the Paterson Group Video Ezy store at Thomsons Lake in Western Australia.
Mr Jones says that in late November 2011 he received a telemarketing call from a female caller to the following effect:
Caller: Hi. It’s ____________ from Safety Compliance. We have a package of workplace health and safety information that we are sending to businesses. Every business in Australia is required to display two of these wall charts in store in a prominent location. Would you like to place an order?
Me: I can’t authorise that, all orders go through head office.
Caller:May I have the number for head office?
Me:[number]
Caller: Who do I need to speak to at head office?
Me:If you call the office and tell them where you are from, they will put you in touch with the right person.
Mr Jones says that he was willing to direct the caller to head office as he believed that it was required for the store to display the wall charts that the caller was selling. He believed this because the caller said that every business in Australia was required to display wall charts.
Mr Jones says that on 14 December 2011, the store manager at the Thomsons Lake store indicated that signage had been received. The package was dealt with in accordance with instructions from Ms Karen Cleverly, the accounts manager at Paterson Group Video Ezy.
Ms Sandra Blakeney
Ms Blakeney is the office manager at the head office of Paterson Group Video Ezy. Ms Blakeney says that the head office phone number is not publicly listed and is generally only circulated within Paterson Group Video Ezy.
On 21 November 2011 she received a telephone call from a person called “Peyton” to the following effect:
Peyton:Hi, I am calling from Safety Compliance. I’ve spoken to Karen previously about sending the Safety Compliance signage to each of the stores. I’m calling to get the mailing addresses for each of the stores so that I can send out some of the Safety Compliance signage.
SB:I’ve got a contact list for each of the stores if that would help with the distribution.
Peyton:That would be great. Are you able to email the list to “Attention Peyton [email protected]”?
Ms Blakeney sent the list to Peyton immediately after the phone call.
Ms Blakeney says that when Peyton stated that she was from Safety Compliance, Ms Blakeney believed that she was a person from the government because of her use of the word “compliance”. She believed that the signs were to be provided free of charge as part of a government initiative because Peyton did not refer to any pricing nor did she suggest that Paterson Group Video Ezy was required to order the signs. When Peyton referred to “Karen” she thought she was referring to Ms Karen Cleverly, the accounts manager in the Paterson Group Video Ezy head office.
On 24 November 2011, Ms Cleverly came to the office and asked if Ms Blakeney knew anything about workplace signs being ordered for Paterson Group Video Ezy stores. Ms Blakeney replied that nothing had been ordered but “I did receive a telephone call from someone the previous week who gave the impression that the signs were compulsory for workplaces” and she sent them a contact list.
In the afternoon of the same day, Ms Blakeney received a copy of an email sent to all Paterson Group Video Ezy stores advising them as to what they should do if they were approached by Safety Compliance in relation to workplace safety signs. It attached a copy of a notice dated 7 November 2011 from the ACCC warning about the alleged conduct of Safety Compliance.
Ms Karen Cleverly
Ms Cleverly confirmed that general purchasing decisions for all Paterson Group Video Ezy stores within the franchise chain are the responsibility of the head office.
Ms Cleverly says that she first became aware of telemarketing calls selling workplace signs on 24 November 2011 when she received a call from Lorretta Ferrone, the store manager at the Belridge store. Ms Ferrone advised that she had received a call from a woman who stated that she had spoken to Ms Cleverly and that Ms Cleverly had authorised the purchase of workplace signs. Ms Cleverly denied that. Shortly after, Ms Cleverly sent an email to store managers advising them to be cautious of telemarketing calls claiming to be from “workplace” or “work safe signs” and making representations that they had spoken to Ms Cleverly when they had not.
On the same day Ms Cleverly:
a.was advised by Ms Blakeney of the contact she received;
b.received an email from Ms Karen Merigan, the store manager of the Currambine store indicating that she had already been approached and had ordered signs since the caller indicated that she had spoken with Ms Cleverly; and
c.received a telephone call from Fanoula Toy (Kiranou), the manager of the Kalgoorlie store, indicating that she had already been approached and had ordered signs since they mentioned Ms Cleverly’s name.
Ms Cleverly denies ever having spoken to anyone at Safety Compliance at any time before 24 November 2011 nor had she asked Safety Compliance to contact store managers or supply signage. On 24 November, Ms Cleverly sent an email to Safety Compliance to this effect and asked that they not supply goods and advised them that she had spoken with the ACCC concerning the issue. On 25 November the managers at the Kalgoorlie and Currambine stores received confirmation of order emails from Safety Compliance bearing Ms Schimmel’s name. Ms Cleverly then sent a further email to Safety Compliance reaffirming that it should not send any goods to stores.
Ms Cleverly says that on 11 January 2012 she received a call from a person called “Caroline” requesting payment for the workplace signage that had been sent to one of the stores and they had a conversation to the following effect:
Caller:Hi. My name is Carolyn from Safety Compliance. I’m calling about an outstanding invoice …
Me:As I mentioned in my emails to Safety Compliance we do not want the signs.
Caller:I personally have not received your emails. What did they say?
Me:In my email I said that someone had called our stores and falsely stated that they had spoken to me and that I had authorised the signs. I hadn’t. I’ve sent three emails to Safety Compliance. The first one advised of the unsolicited supply of the goods in our stores and directed that you not send anything. The other two emails were in response to emails sent from Safety Compliance to our stores after my initial email, advising the stores their stock had been sent, to which my response was not to send anything to our stores. We have no interest in your product.
Caller:You might not have up-to-date information and I can’t stress how important it is for companies to have occupational health and safety in the workplace.
Me:The signs were unsolicited and we do not want them.
Caller: I don’t understand what you mean by “unsolicited”.
Me:Unsolicited means that the signage was sent to our stores without my authority. I did not authorise Safety Compliance to send any signage to our stores and we don’t want them. You have three months to arrange for the signs to be collected from our stores. After this time they will be destroyed.
Caller:I will advise the person in the office that the stock was sent under false pretences. You can keep the product and I’ll reverse the invoice.
Ms Cleverly says there has been no further contact from Safety Compliance.
Ms Karen Merigan and Ms Fanoula Toy (Kiranou)
Ms Karen Merigan and Ms Fanoula Toy (Kiranou) gave evidence consistent with Ms Cleverly’s account.
Ms Merigan said that she received a call “regarding the legal requirements in relation to workplace health and safety [that] it is a necessity that businesses have information about workplace health and safety displayed in their stores”. She consented to receive materials because during the call she was told that the head office had approved it and they specifically mentioned Ms Cleverly’s name.
Ms Toy gave evidence that she received a follow-up phone call from a person at Safety Compliance two weeks after receipt of the package containing materials. She told the person that the purchase had not been approved by head office. The person said that Ms Toy could keep the materials.
RELEVANT LEGAL PRINCIPLES
There was no dispute by the Active Respondents that the conduct of Safety Compliance which is the subject of these proceedings related to the supply of goods (wall charts and first aid kits) in trade or commerce to customers throughout Australia.
There was also no dispute about the statement of principles applicable to consideration of the alleged contraventions by Safety Compliance proposed by the ACCC.
Misleading or deceptive conduct: s 52 TPA/s 18 ACL
These provisions are in essentially the same form:
A [TPA: corporation shall not/ACL: person must not], in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
Whether conduct is misleading or deceptive is a question of fact to be determined having regard to the context in which the conduct takes place: Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177. That question is to be approached by reference to what a reasonable person in the class to which the conduct is directed is likely to understand from the impugned conduct: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191.
In Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] ATPR 42-290; [2009] FCA 682 (ACCC v Dukemaster), Gordon J usefully summarised the relevant principles at [10]:
1. A contravention of s 52(1) of the TPA is established by “conduct” which is misleading or deceptive or likely to mislead or deceive: Global Sportsman Pty Ltd 2 FCR 82, 87. The “conduct”, in the circumstances, must lead, or be capable of leading, a person into error (Hannaford (trading as Torrens Valley Orchards) v Australian Farmlink Pty Ltd [2008] FCA 1591 at [252] citing Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 200; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198) and the error or misconception must result from “conduct” of the corporation and not from other circumstances for which the corporation is not responsible: Global Sportsman Pty Ltd 2 FCR 82, 91. “Conduct” is likely to mislead or deceive if there is a “real or not remote chance or possibility regardless of whether it is less or more than fifty per cent”: Global Sportsman Pty Ltd 2 FCR 82, 87.
2. Section 52(1) is concerned with the effect or likely effect of “conduct” upon the minds of that person or those persons in relation to whom the question of whether the “conduct” is or is likely to be misleading or deceptive falls to be tested. The test is objective and the Court must determine the question for itself: Global Sportsman Pty Ltd 2 FCR 82, 87. Section 52 is not designed for the benefit of persons who fail, in the circumstances of the case, to take reasonable care of their own interests: Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd (1987) 78 ALR 193 at 241. Moreover, it would be wrong to select particular words or acts which although misleading in isolation do not have that character when viewed in context: Elders Trustee 78 ALR 193 at 241 citing Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199.
3. “Conduct” can, of course, include making a statement which is misleading or deceptive or likely to mislead or deceive: Global Sportsman Pty Ltd 2 FCR 82, 88.
4. By making a statement of past or present fact, a corporation’s state of mind is irrelevant unless the statement involved the state of the corporation’s mind: Global Sportsman Pty Ltd 2 FCR 82, 88. Contravention of s 52(1) does not depend upon the corporation’s intention or its belief concerning the accuracy of the statement of fact but upon whether the statement conveys a meaning which is false. A false meaning will be conveyed if what is stated concerning the past or present fact is inaccurate but also if, although literally true, the statement conveys a meaning which is false.
5. Precisely the same principles control the operation of s 52(1) to statements involving the state of mind of the maker when the statement was made (e.g. promises, predictions and opinions). A statement which involves the state of mind of the maker ordinarily conveys the meaning (expressly or impliedly) that the maker of the statement had a particular state of mind when the statement was made and, commonly, that there was a basis for that state of mind: Global Sportsman Pty Ltd 2 FCR 82, 88.
6. A statement of opinion will not be misleading or deceptive or likely to mislead or deceive merely because it turns out to be incorrect, misinforms or is likely to do so: Elders Trustee 78 ALR 193, 242 and Bateman v Slatyer (1987) 71 ALR 553, 559. An incorrect opinion does not of itself establish that the opinion was not held by the person who expressed it or that it lacked any or any adequate foundation: Global Sportsman Pty Ltd 2 FCR 82, 88. An expression of an opinion which is identifiable as an expression of opinion conveys no more than that the opinion is held and perhaps that there is a basis for the opinion. If that is so, an expression of opinion however erroneous misrepresents nothing: Global Sportsman Pty Ltd 2 FCR 82, 88.
7. However, an opinion may convey that there is a basis for it, that it is honestly held and when it is expressed as the opinion of an expert, that it is honestly held upon rational grounds involving an application of the relevant expertise. If the evidence shows that the opinion was not held or that it lacked any or any adequate foundation, particularly if the opinion was expressed as an expert, a statement of opinion may contravene s 52 of the TPA: Elders Trustee 78 ALR 193, 242, proposition (4): see also Hannaford [2008] FCA 1591 at [253] and RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164; Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388; NC Seddon and MP Ellinghaus, Cheshire and Fifoot’s Law of Contract (9^th Australian Edition, 2008), [11.116].
A contravention may occur at the point where a representation engenders an erroneous belief even if the customer may come to appreciate the true position before a transaction is concluded: Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1 (MBF v Cassidy) at [43].
Evidence of members of the target audience as to how they reacted upon receiving a telemarketer’s call or reading documents is relevant to and may be persuasive on the issue of whether conduct is misleading or deceptive or likely to mislead or deceive. It is not necessary for there to be any such evidence but if there is, it is not conclusive. It is necessary for the Court to make an objective assessment for itself of whether an ordinary and reasonable member of that target audience would be likely to be misled or deceived.
False or misleading conduct: ss 53(a), 53(d) and 53(f) TPA/ss 29(1)(a), 29(1)(d), 29(1)(h) and 29(1)(l) ACL
Section 53 of the TPA relevantly provides as follows:
53 False or misleading representations
A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services:
(a)falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use;
…
(d) represent that the corporation has a sponsorship, approval or affiliation it does not have;
…
(f) make a false or misleading representation concerning the need for any goods or services;
…
Section 29(1) of the ACL relevantly provides:
29 False or misleading representations about goods or services
(1)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:
(a)make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or
…
(d)make a false or misleading representation that a particular person has agreed to acquire goods or services; or
…
(h)make a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation; or
…
(l)make a false or misleading representation concerning the need for any goods or services;
…

There is also ample evidence that the First Aid Kit Order Confirmation Form was sent to the small business witnesses from December 2010 until at least June 2012 and Ms Schimmel admits that a signed form must be received in relation to the sale of a first aid kit.
I am satisfied that (except for New South Wales before 1 January 2012), there was in fact no legal requirement for a small business owner to possess a first aid kit of the kind offered for sale by Safety Compliance and therefore:
·a statement in the First Aid Kit Order Confirmation Form that “under state and territory workplace legislation all workplaces must have a least one first aid kit” and “the possible fines and or penalties for non compliance far exceeds the purchase price of the first aid kit”; and
·Conduct by telesales staff to the effect that there is such a requirement,
are misleading or deceptive and the representations are false.
I am also satisfied that the Conduct and the impugned statements in the First Aid Kit Order Confirmation Form are capable of inspiring the belief in small business owners and managers, and did induce in Ms Pollard (a resident of Victoria), the erroneous belief that there is both a legal requirement and need for a first aid kit of the kind sold by Safety Compliance.
I am therefore satisfied that Safety Compliance made First Aid Kit Representations which were misleading or deceptive and which were false and misleading as to the requirement or need for a business to have first aid kits of the kind offered for sale by Safety Compliance in the period from December 2010 to the commencement of proceedings in April 2012 up to June 2012 in contravention of ss 52 and 53(f) of the TPA and ss 18 and 29(1)(l) of the ACL.
Ms Schimmel and Mr Black
The ACCC successfully demonstrated that Mr Black and Ms Schimmel knew of and were responsible for the Conduct and the publication of the First Aid Kit Order Confirmation Form.
However, it is an essential element of the accessorial liability claim made against Ms Schimmel and Mr Black that it can be proved that they knew that workplace health and safety laws (other than in New South Wales) did not require businesses to maintain a first aid kit of the kind sold by Safety Compliance. That is how the ACCC pleaded it case. The evidence does not support that contention and this claim against Ms Schimmel and Mr Black must fail.
I accept Ms Schimmel’s evidence that she believed that a first aid kit was required from reading a publication which she obtained from WorkCover NSW. I also accept that Mr Black’s internet research led him to the same view. While the failure to take necessary steps to inform themselves of the correct position is undoubtedly reprehensible and contributed directly to Safety Compliance’s contravention of ss 52 and 53(f) of the TPA and ss 18 and 29(1)(l) of the ACL I am not satisfied that they knew the true position.
COERCION
The ACCC claims that Safety Compliance and the Active Respondents engaged in coercion. The ACCC relies on the Conduct of Safety Compliance’s telesales staff, in particular the representations that the wall charts and first aid kits were required and the requirement for charts and kits would be enforced by inspections. The ACCC also relies on the form of debt recovery engaged in by Safety Compliance which threatened to take steps which might adversely affect a customer’s credit rating.
Small business witnesses
Ms Bayer said that she purchased the wall chart following a telephone call on 26 November 2010 because she thought that it was a legal requirement so she had no choice; as she put it: “Well, if I have to have it, I have to have it.” A couple of weeks after she received the Wall Chart Package, Ms Bayer received two follow up telephone calls from “Brian” of Safety Compliance in a two day period. She returned the materials to Safety Compliance on 21 April 2011.
Around 13 May 2011, Ms Bayer received a Final Notice in the form set out at [256] below. She sent another letter to Safety Compliance advising that she had referred the matter to the Queensland Office of Fair Trading.
Ms Bayer remained concerned about the threat to her credit rating. On the advice of the Office of Fair Trading, she rang Baycorp Advantage Group and had a conversation with a person named Kylie to the following effect:
Ms Bayer:… I was told by the OFT to contact you to check what Baycorp’s policy is for listing bad debts.
Kylie:To be listed by Baycorp as a bad debt the amount in dispute must be over $100 and the party seeking to make the listing must be a member of Baycorp. A party would not be listed as a bad debt until after an investigation, which they would be made aware of, was completed.
Around 19 May 2011, Ms Bayer received a call on her mobile telephone from a person called “Tracey” from Safety Compliance who acknowledged receipt of Ms Bayer’s letter who said:
We hadn’t realised that you’d returned the materials. I’m sorry about the situation.
Ms Bayer believes that her original caller from Safety Compliance also tried to contact her.
Ms Olden and Ms Elson were told that it was a legal requirement that they have wall charts and inspectors would check compliance. Ms Olden believed the caller was from a government agency and Ms Elson believed the caller was from an entity contracted by such an agency. On that basis, they both agreed to receive wall charts. Both contacted appropriate agencies (WorkSafe WA and the Queensland Office of Fair Trading) to query their obligations. When they received follow up telephone calls from Safety Compliance telesales staff they indicated that they would not pay for the materials because they were not a “legitimate product”, as Ms Elson termed it. Neither had further contact with Safety Compliance.
Ms Moore and Ms Houghton were told that it was a legislative requirement to have wall charts. Ms Moore was told that the government was “cracking down” on the requirement and there would be random inspections. Ms Houghton was told the requirement would be enforced by fines. Neither paid for the materials after checking with WorkCover (Ms Houghton) and a local Member of Parliament (Ms Moore).
Neither Safety Compliance nor any of the Active Respondents challenged the admissibility or correctness of this evidence.
Debt recovery letters
Safety Compliance issued two forms of letter demanding payment. Both incorporated a threat of legal action and prejudice to credit rating for non-payment.
Tylers Letter
One form of letter purported to be issued by Tylers Recovery Agents. It provides as follows:
PARTICULARS OF CLAIM:Workplace Safety Emergency Procedures pack
AMOUNT OF DEBT: $49.95 + $4.99 GST + $4.00 = $58.95
FINAL DATE FOR PAYMENT: [Date]
IMPORTANT NOTICE: IF PAYMENT IS RECEIVED BY THE [DATE] YOUR TOTAL AMOUNT DUE WILL BE $40.00 INCLUSIVE OF GST
TAKE NOTICE that, as agent for the CREDITOR, we hereby DEMAND payment in full of the DEBT on or before the FINAL DATE shown above.
Non payment may result in your CREDIT RATING being affected.
If DEFAULT is made in payment by the FINAL DATED immediate legal proceedings by way of PLAINT or SUMMONS may be taken against you for the recovery of the DEBT, without further notice.
AFTER service of the SUMMONS on you and should you fail to defend the SUMMONS, then a JUDGEMENT may be entered against you for the DEBT plus LEGAL COSTS and all other amounts permitted by LAW.
ONCE JUDGMENT is entered against you, it may be ENFORCED by way of WARRANT OF EXECUTION. GARNISHEE PROCEEDINGS or an ATTACHMENT OF EARNINGS ORDER (served on your employer). LEGAL COSTS associated with the ENFORCEMENT of the JUDGEMENT WILL ALSO BE RECOVERED FROM YOU.
TO AVOID FURTHER ACTION, WE URGE YOU TO PAY THE FULL AMOUNT OF THE DEBT BY THE FINAL DATE, OR PHONE THE CREDITOR TO ARRANGE PAYMENT TERMS.
Alternatively, you should contact the CREDITOR on the above number to arrange payment, part payments or Resolution of the outstanding DEBT.
Thank you for your prompt attention.
Tylers Recovery Agents - Agent for the CREDITOR.
Baycorp Advantage letter
The form of letter sent to Ms Bayer was typical of the other form of debt recovery letter employed by Safety Compliance:
FINAL NOTICE
INVOICE AUTHORISING PERSON DUE DATE AMOUNT
7138 Inge Bayer 9/12/2010 $58.95
IMPORTANT NOTICE: IF PAYMENT NOT RECEIVED BY: 4th MAY 2011. YOUR TOTAL AMOUNT DUE WILL BE $45.00 INCLUSIVE OF GST
Dear Inge,
We hereby notify that failure to make payments within the next fourteen (14) days for your Workplace Safety Emergency Procedures Wall Charts, will result in the commencement of Legal Action. Any costs or charges incurred for the recovery of the debt will be liable to you.
A default notice will be lodged with Baycorp Advantage Group and your future applications for credit with any organisation (including banks and credit unions) will be adversely affected.
If you are experiencing difficulties with payments, please contact our Accounts Department at your earliest convenience.
Mr Black admitted approving the form of the letters. He admitted that “Tylers Recovery Agents” does not exist and the reference to the Agents was put in “just so the people would pay”. Mr Black suggested that people had the alternative of saying they did not want the materials and sending them back. That alternative is not apparent in the Wall Charts Package or on the invoice which accompanied it.
Mr Black admitted that Safety Compliance had no relationship with Baycorp Advantage Group, although he suggested that he had it in contemplation.
It is not evident that Mr Black had any contact with any credit rating agency to establish a relationship or what its requirements might be. He thought that anyone could list a bad debt with a credit rating agency. He did not resist the proposition that he had no basis for making threats of the kind in the debt recovery letters.
Ms Schimmel’s evidence in August 2011 was that if a customer did not pay after the follow up telephone call from “Accounts”, the customer was issued a “final notice” and then the debt was cancelled if they still did not pay. She said she was unaware of the form of the Final Notice and she had never heard of Baycorp Advantage or Tylers Recovery Agents.
Consideration
It is clear from the case law that referring to the fact that a creditor might take debt recovery action and that there may be consequences for failure to pay a debt does not amount, by itself, to coercion. However Mr Black was clearly unjustified in referring to a debt recovery agency which does not exist or Baycorp Advantage with which Safety Compliance had no relationship and with which, based on Ms Bayer’s call to Baycorp Advantage, it is unlikely that one would have come to pass. Those statements were intended to intimidate and they were misleading and deceptive. He was also not justified in his conviction that customers would have known that if they did not want the materials after inspection, all they had to do was send them back. That fact should have been clear from the telesales call and invoice sent with the Wall Charts Package but it was not.
Having said that, I am not satisfied that Safety Compliance’s Conduct and the despatch of the debt recovery letters can, in all of the circumstances, properly be described as coercive. The Conduct can properly be described as misleading, and actions in relation to debt recovery letters as an inept attempt at intimidation involving false representations of affiliation with debt recovery and reporting agencies. However, I do not accept that the necessary element of compulsion or serious threat is present even though the tenor of the phone calls and debt recovery letters was deliberately intimidating.
As pointed out by French J in ACCC vMcCaskey at [51], quite apart from content, “the manner or circumstances of a demand or communication, including the language used, the time and place at which it is made and the person to whom it is communicated” are relevant in determining whether a communication goes beyond legitimate purposes, such as drawing attention to the existence of an obligation and the consequences for non-compliance.
It is true that some of the small business witnesses understood the telesales staff to be from a workplace health and safety agency (or an affiliate of one) who called to advise them of a legal requirement to have a wall chart at the risk of inspection and penalty with the result that they agreed to order a Wall Chart Package because they understood it to be required. It is also true that a small business owner or manager might be expected to be aware that workplace health and safety laws existed, but that they would not have any detailed knowledge of those complex laws. This is especially true of sole proprietors.
However, there was no pressure to complete the purchase through demand for immediate payment. Had there been a demand for immediate payment to complete the purchase, then the degree of intimidation inherent in a representation which leads a small business owner or manager to believe they are dealing with a government agency in a position to punish non-compliance by fines is likely to have tipped the balance into coercion of the purchase. I do not consider that an apt characterisation in this case.
The fact that customers received the product with an invoice some time after the telephone calls allowed a “cooling off” period. With time to think, and having regard to the presentation of the materials, the only witness who completed a purchase of the first aid kit and wall chart package was Ms Pollard. The others contacted relevant agencies, albeit in some cases because they were notified by trade organisations of a “scam” with respect to workplace health and safety. Most of the small business witnesses did not rush to payment.
While there were “follow up” telephone calls in relation to Wall Chart Packages which had not been paid for, they were not immediate. The price of the products was low, which is likely to lessen the general distress caused by being followed up. It appears that Safety Compliance did in fact accept return of the materials which is inconsistent with coercion. To the extent that the fact that a return had been made did not prevent follow up action in some cases, there is no evidence that this was a deliberate attempt to collect moneys which the caller knew were not payable but rather the outcome of inefficient business systems.
It appears that the Final Notices were sent some months after the packages. Bizarrely, those notices seem to demand less than the cost of the package, postage and handling set out on the face of the document: that was certainly the case in the Final Notice sent to Ms Bayer. I accept that Ms Bayer was concerned by the warning in the Final Notice that her credit rating might be affected by non-payment, however it did not incline her to pay for the products she had returned to Safety Compliance.
Ms Pollard’s evidence is that she did feel compelled to purchase from the tenor of the telephone call which she believed came from a government agency coupled with a discussion of a legal requirement to have a wall chart and first aid kit. She does not mention a threat of fines or inspections. In my view Ms Pollard was misled, not coerced.
As I have found that the claimed contravention of s 60 TPA/s 50(1)(a) ACL by Safety Compliance has not been made out, none of the Active Respondents can have accessorial liability.
VIDEO EZY REPRESENTATION
Having regard to the uncontested evidence of Ms Cleverly, Ms Blakeney, Mr Jones, Ms Merigan and Ms Toy referred to at [109]-[127] I find that Safety Compliance, through its telesales staff in November 2011, made statements to the effect that Ms Cleverly, or another representative of Paterson Group Video Ezy, authorised and agreed to the purchase of wall charts. I accept Ms Cleverly’s evidence that she had not spoken to anyone at Safety Compliance at any time before 24 November 2011 and that she did not authorise anyone at Safety Compliance to contact store managers or supply any of the Paterson Group Video Ezy stores with wall charts. I also accept Ms Cleverly’s evidence that she made attempts on 24 and 25 November 2011 to contact Safety Compliance by email to clarify that she had never spoken to anyone at Safety Compliance and to request that Safety Compliance not send goods. She ultimately confirmed that position again in a telephone call with a caller from Safety Compliance on 11 January 2012.
I therefore find that Safety Compliance made the Video Ezy Representation which was false, misleading and deceptive in contravention of ss 18 and 29(1)(d) of the ACL.
MR KING
The ACCC admits that there is no direct evidence that Mr King had actual knowledge of the matters on which it relies to establish the Representations and Mr King denies any real knowledge of or involvement in the conduct of Safety Compliance’s business.
The ACCC submitted that, taken as a whole, the evidence is capable of giving rise to an inference that Mr King was the true principal and controlling mind of Safety Compliance; that he was aware of the nature of the communications being made by Safety Compliance because they had not changed substantially from his initial idea; he continued to offer support and advice to Mr Black in managing the company on Mr King’s behalf throughout 2010 and 2011; he was specifically aware of the nature of the ACCC’s allegations from at least April 2011 as set out in the March 2011 s 155 notice issued by the ACCC to Safety Compliance; and he deliberately attempted to distance himself from any visible role in Safety Compliance because he was aware of the “scam” at the heart of its operations.
In summary, I am not satisfied that Mr King was knowingly concerned in Safety Compliance’s contraventions of the TPA and the ACL before April 2011, but I do accept that he was knowingly concerned in its contravention of ss 18, 29(1)(a), 29(1)(h) and 29(1)(l) of the ACL from mid April 2011 in relation to wall charts and related materials until at least 15 February 2012 for the following reasons.
As evidence of both motivation for shielding himself from a visible role in Safety Compliance and tendency, the ACCC relies on a consent order made by the Supreme Court of New South Wales on 2 May 2008 and entered on 11 June 2008 in the matter of the Commissioner for Fair Trading v Kent Publishing Pty Ltd and Dean James King in relation to contraventions of ss 52 and 64 of the TPA and ss 42 and 58 of the Fair Trading Act 1987 (NSW). Kent Publishing Pty Ltd (Kent Publishing) agreed that it had engaged in misleading or deceptive conduct and that it had falsely asserted a right to payment in connection with the solicitation of advertising from small business owners through a telemarketing operation. Mr King, who was Kent Publishing’s sole director, agreed that he had aided, abetted, counselled or procured, induced and was directly or indirectly knowingly concerned in and party to Kent Publishing’s conduct. Mr King opposed the admission of the tendency evidence on the basis that Mr King was not a director of Safety Compliance. I determined to admit the order as evidence of motivation but not of tendency, because I was not satisfied ultimately that it had significant probative value in relation to the issue of tendency as required by s 97(1)(b) of the Evidence Act.
Mr King is an intelligent and astute person with significant business experience. However, he was an unsatisfactory and unreliable witness. His answer to many direct questions was equivocal. Sometimes he added “I am not saying I didn’t” closely followed by words to the effect that “I’m not saying I did”. It was not unusual for Mr King to say “I might have”, even when he went on to give evidence relating to the topic of the question. As an example, at the ACCC interview, Mr King was unwilling to admit that he had accompanied his nephew to get legal advice after the ACCC issued a notice to Safety Compliance dated 22 March 2011 until it became clear that the ACCC knew of his visit to Mr Ponting (the lawyer Mr King used in connection with Kent Publishing) and that he ran into Mr O’Halloran (the principal of AWS) at Mr Ponting’s office. By way of further example, Mr King denied understanding fundamental obligations of directors and the implications of shareholding, seeking to minimise his experience until directly confronted by the ACCC with the evidence of his directorships and shareholding of private companies disclosed in an ASIC search.

Further, there is an obvious difficulty that Mr Kent made himself unavailable to the ACCC investigators and was not a witness in these proceedings. However, Mr King made it clear that he was able to contact his brother, which the ACCC could not. In so far as Mr King seeks to rely on the role which he alleges Mr Kent played, I am less inclined to believe him because it was open to him to call Mr Kent’s evidence in aid of his position but he has not offered any explanation for his failure to do so.
To my mind Mr King deliberately obfuscated his responses at both the ACCC’s examination in December 2011 and at the hearing; if this was designed to avoid an outright lie, it does not encourage belief in Mr King’s evidence which was often self-serving and deliberately inexact.
I find that Mr King (through Wotam and the Safety Compliance Trust) controlled Safety Compliance and controlled the distribution of any profit it might have made at least up to February 2012. While I accept that Mr King’s accountant put the arrangements in place, I do not accept that Mr King did not fully understand the nature of his interest in Safety Compliance and the control it conferred on him. It stretches credulity beyond belief that Mr King simply forgot that Wotam was Safety Compliance’s shareholder or that he was not at all times aware that he had effective ownership and control of Safety Compliance and the distribution of any profits it might make at least up to February 2012.
I accept that the consent order in Commissioner for Fair Trading v Kent Publishing Pty Ltd and Dean James King was a motive for Mr King to avoid being connected overtly with a telemarketing business based on the model of AWS.
The evidence given by Mr King and Mr Black supports the view that Mr Kent is a successful man of business who is semi-retired, living six to eight months a year outside Australia, often in Bali and Japan with another home in Forster in New South Wales. It is not credible that such a man would simply lend $10,000 to fund the start-up of Safety Compliance and take on the duties of sole director without protecting his own interests at least to the same extent as Mr King unless he understood that the arrangement was for Mr King’s benefit. It is not credible that Mr Kent would accept that the business would be set up in such a way that he had no say or control over whether or not he remained a director or how profits were to be shared if the business was successful if it was intended that he share in those benefits. I do not accept that Mr King and Mr Kent, as directors and shareholders of operating businesses over a number of years, would not understand that Mr King had the power to appoint and remove directors of Safety Compliance and that as a director Mr Kent was constrained in how he dealt with Safety Compliance’s money. It is difficult to see why he would accept that a business in which he had an interest would, in a start-up phase, pay inflated rent to his brother, double what the previous tenant paid. That rental structure allowed Mr King to take profits from Safety Compliance without it being apparent that he was doing so.
The structure of the ownership and control of Safety Compliance established by Mr King’s accountant with no arrangement for sharing profits, the payment of inflated rent and the likelihood and fact of Mr Kent’s scant presence leads me to conclude that Mr Kent had no interest in Safety Compliance and he took the office of director formally to oblige his brother. It is unsurprising that he was willing to resign in August 2011 with Safety Compliance’s profitability appearing problematic and the ACCC apparently serious about pursuing its enquiries with the examination of Ms Schimmel.
It is uncontentious that Mr King had the idea for Safety Compliance’s business and he admits that he read the AWS materials left at the Premises on the basis of which he decided that there was a good idea for a business on a model which was familiar to Mr King, Mr Kent and Mr Black, all of whom had experience in telemarketing. Mr King also concedes that it was the expectation that the business would use the AWS “pitch”. Mr King says that he was fully engaged with Promo Direct Pty Ltd at the time. I accept that Mr Black was eager to prove himself by doing the running around and supervising staff: he admits that he is not well educated but was ambitious to do well and admired his successful uncles and wanted to emulate them. I accept that Mr Black believed that they would all share the profits if the business was successful, but there were no arrangements in place to ensure that: Mr Black simply trusted his uncles.
That confidence may not have been well founded. Mr Black says that he thought that Mr Kent was the sole shareholder of Safety Compliance until he was told of Mr King’s ownership following the issue of a notice by the ACCC. The evidence demonstrates that Mr Black was not just wrong about the ownership of Safety Compliance; it appears that he received a number of unpleasant surprises, including the appointment of Ms Schimmel as a director to replace Mr Kent. While Mr Black attributed Ms Schimmel’s appointment to Mr Kent’s decision, it was a question for Mr King. Mr Black says that he ultimately felt “left out in the cold”. That the uncles might not have told him everything appears likely.
I am satisfied that Mr Black managed the business from June 2010 until at least August 2011 for the reasons set out at [181] and that Ms Schimmel had a significant role in management from March 2011 and was a director from August 2011 as she admitted. I accept that Mr King thought the business model simple; he could reasonably expect that it would not require significant involvement from him. By giving the AWS materials and management responsibility to Mr Black and then Ms Schimmel, Mr King had the benefit of exploiting the opportunity presented by the materials left behind by AWS without much effort from himself. It was a way of using the Premises which were available after AWS vacated them and, perhaps, giving his nephew an opportunity to prove himself.
The question which then arises is, having regard to his ownership and capacity to control Safety Compliance, what involvement did Mr King actually have? It is Mr Black’s evidence that he reported to Mr Kent when he was there but that was not often and he did seek guidance from Mr King as an experienced man of business. Mr Black and Mr King saw each other socially almost daily. It is clear that Mr King gave advice to Mr Black on telemarketing strategies, commented on Mr Black’s thoughts concerning wall charts and at least monthly discussed Safety Compliance’s financial performance. I accept Mr Black’s evidence that it was at his instigation and the advice was in general terms.
Apart from handing over the AWS materials, there is no evidence that Mr King had a role in drafting or approving the documents used by Safety Compliance in its business and Mr Black and Ms Schimmel say that they did that. At best, the evidence supports the view that Mr King was cognisant of the AWS materials and read them at least enough to assess that they provided a business opportunity and that the Wall Charts Spiel was changed by Mr Black and Ms Schimmel only by removing detail of the contents of the wall charts and the need to provide credit card details. It is likely that the consent order made in Commissioner for Fair Trading v Kent Publishing Pty Ltd and Dean James King had bearing on Mr Black’s decision to amend the Wall Charts Spiel so that credit card numbers were not requested, but there is no evidence that Mr King had a role in that decision. The evidence is that Mr King simply responded to questions from time to time asked by his nephew and he referred Mr Black to a person who was “becoming an OH&S officer” in relation to emergency procedures and to a person who might assist in building a data base for Safety Compliance. There is no evidence that Mr Black discussed Safety Compliance’s complaints experience with Mr King; Mr Black’s evidence is that he did not think that the complaints experience was significant.
I accept that Mr King only attended at the Premises during Safety Compliance’s occupancy because of a malfunctioning air conditioner and plumbing issues and that he had no role in relation to telemarketing staff or complaints handling. It appears that only Mr Black and Ms Schimmel had a role in dealing with the telemarketers and complaints handling.
There is no evidence that Mr King had any knowledge of workplace health and safety laws or that he cared about the contemporary content of the materials used by Safety Compliance before the ACCC issued its notice to Safety Compliance in March 2011.
The notice issued by the ACCC to the “Proper Officer” of Safety Compliance on 22 March 2011 relevantly provided as follows:
1.   During the period from about October 2009 to the date of these Notices (Relevant Period) Safety Compliance Pty Ltd (Safety Compliance) made representations in trade or commerce, in connection with the supply to certain businesses of a “Workplace Emergency Procedure Flipchart” (Flipchart), “Safety Procedure Wall Chart” (Wall Chart) and/or other safety-related material, to the effect that:
(a)the relevant business were required, under relevant workplace laws or regulations to purchase the Flipchart, Wall Chart, and/or other safety related material;
(b)Safety Compliance was affiliated with WorkCover NSW or other government body; and/or
(c)Safety Compliance would arrange a visit from WorkCover NSW or other government body, for the purposes of undertaking a safety inspection of the businesses which declined to purchase the Flipchart, Wall Chart, and/or other safety related material;
when in fact:
(d)during the Relevant Period, it was not a requirement under the relevant state workplace laws or regulations, including the Occupational Health and Safety Act 2000 in NSW, for businesses to purchase the Flipchart, Wall Chart or other safety related material from Safety Compliance;
(e)during the Relevant Period, Safety Compliance was not affiliated with any government body, including WorkCover NSW; and
(f)WorkCover NSW does not conduct safety inspections of businesses which decline to purchase the Flipchart or other safety related material from Safety Compliance.
2.   In making the representations referred to in sub-paragraphs 1(a) to 1(c) of these Notices, Safety Compliance engaged in conduct, in trade or commerce, that was false, misleading or deceptive or likely to mislead or deceive.
3.   In making the representations referred to in sub-paragraphs 1(a) to 1(c) of these Notices, Safety Compliance, in connection with the supply or possible supply of goods, coerced certain businesses into purchasing the Flipchart, Wall Chart and/or other safety related material.
…
4.   During the Relevant Period, Safety Compliance accepted payments(s) and /or sent tax invoices to certain businesses requiring payment, on one or more of the terms referred to in paragraphs 1(a) to 1(c) of these Notices.
Mr King’s accountant advised him of the receipt of the ACCC’s notice. On 12 April 2011 the accountant advised the ACCC by email that he had only just realised his error and that he should have sent it to Mr Kent who was Safety Compliance’s director. Mr King says that when he discussed the notice issued by the ACCC with Mr Kent, Mr Kent said “Whatever” because as far as he was concerned the allegations were “just completely not true anyway”. Mr King conceded that he supposed the allegations were serious.
Mr Black’s evidence is that because Mr Kent was absent and Mr King is his uncle, Mr Black approached Mr King for advice when he became aware from Ms Schimmel that the ACCC had served a notice on Safety Compliance at its registered office in March 2011.
Mr King went with Mr Black to see the solicitor Mr King used for Kent Publishing (Mr Ponting) for advice about the notice from the ACCC. There he ran into the owner of AWS (Mr O’Halloran). Mr Ponting was conflicted from acting for Safety Compliance because he acted for AWS in relation to the same sort of issue. Mr Ponting referred Mr King and Mr Black to another lawyer (Arcuri Lawyers). Mr King and Mr Black both attended the meeting about the notice with Arcuri Lawyers.
When questioned whether, on 20 April 2011, he had left a message on Mr O’Halloran’s office telephone to the effect that they would be “fighting this together”, Mr King first said that he “might have” done this, but then denied it. He was equivocal about whether he had a conversation with Mr O’Halloran about the ACCC notices two days later.
I do not accept Mr King’s evidence concerning his knowledge of the ACCC’s notice. He does not say that he did not read the notice, but that “he does not think” that he did. Mr King’s obfuscation is not credible. It is not credible that Mr King was unconcerned by the notice as it was issued to a company which he owned through Wotam and whose business he benefited from through the receipt of rent. Even assuming that he had no day to day role in Safety Compliance, Mr King had an interest in the company’s success. It is not believable that he would have no concern about being drawn into another ACCC investigation relating to telemarketing. I do not accept that Mr King went with his nephew to two lawyers to obtain legal advice about the notice simply to support his nephew. Further, Mr King admits knowing that the notice related to an allegation of false or misleading conduct by Safety Compliance. He was concerned enough to call Mr Halloran and leave a message about “fighting this together”.
I find that Mr King knew that Safety Compliance would conduct its business in accordance with the AWS “pitch”, including a wall charts spiel substantially the same as that which Safety Compliance adopted. He was made aware of the nature of the representations which the ACCC alleged Safety Compliance made about the requirement for wall charts and concerning whether it was, or was affiliated with a workplace health and safety agency from around at least mid-April 2011. I have found that the ACCC has made out those claims. Mr King was, in terms and from a credible source, put on notice that workplace health and safety laws do not require small business owners to own a wall chart of the kind sold by Safety Compliance and he knew that Safety Compliance was not in fact a workplace health and safety agency or affiliated with one. While it is true that Cubicle Signs were put up around the time that the ACCC issued its notice, for reasons previously expressed the Cubicle Signs were not effective to prevent customers forming the view that they were being contacted by a workplace health and safety agency (or an affiliate of one) and no steps were taken to prevent customers forming the belief that they were being told by the telemarketers that there was a requirement to have a wall chart of the kind sold by Safety Compliance.
The ACCC’s notice did not address in terms first aid kits and there is no evidence that Mr King was aware of the First Aid Kit Order Confirmation Form. I therefore make no finding that Mr King was involved in Safety Compliance’s contravention by reason of the First Aid Kits Representation.
CONCLUSION
I decline to make any disclosure order or adverse publicity order in relation to Safety Compliance having regard to the fact that it ceased to carry on business on or before September 2012. I will otherwise make declarations reflecting my findings in these reasons.
I will consult with the parties concerning a timetable for submissions relating to the nature and extent of any injunction, pecuniary penalties or disqualification orders which should be made and costs.

I certify that the preceding three hundred (300) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.
Associate:
Dated: 13 March 2015

Citation:	Australian Competition and Consumer Commission v Safety Compliance Pty Ltd (in liq) [2015] FCA 211
Parties:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v SAFETY COMPLIANCE PTY LTD (IN LIQ) ACN 144 638 826, DEAN JAMES KING, SHANE JOHN BLACK and FIONA ELLEN SCHIMMEL
File number:	NSD 547 of 2012
Judge:	FARRELL J
Date of judgment:	13 March 2015
Catchwords:	CONSUMER LAW – telemarketing offers – representation that workplace health and safety equipment required by legislation – misleading or deceptive conduct – contravention of Trade Practices Act 1974 (Cth) s 52 and Australian Consumer Law s 18 – false or misleading representation concerning need for goods – contravention of TPA s 53(f) and ACL s 29(1)(l) CONSUMER LAW – telemarketing offers – representation that workplace health and safety equipment required by legislation – representation that company was the relevant workplace health and safety agency – contravention of TPA s 52 and ACL s 18 – false or misleading representation that goods were of a particular standard or quality – contravention of TPA s 53(a) and ACL s 29(1)(a) CONSUMER LAW – telemarketing offers – representation that workplace health and safety equipment required by legislation – representation of affiliation with the relevant workplace health and safety agency – misleading or deceptive conduct – contravention of TPA s 52 and ACL s 18 – false or misleading representation that company had sponsorship, approval or affiliation – contravention of TPA s 53(d) and ACL s 29(1)(h) CONSUMER LAW – telemarketing offers – representation that workplace health and safety equipment required by legislation – representation that consumer had already agreed to acquire products– misleading or deceptive conduct – contravention of ACL s 18 – false or misleading representation as to agreement to acquire – contravention of ACL s 29(1)(d) CONSUMER LAW – telemarketing offers – representation that workplace health and safety equipment required by legislation – threat of inspections or fines for non-compliance – no immediate demand for payment – follow up calls –debt recovery letters – need to consider manner and circumstances of a demand or communication – whether conduct amounts to coercion CONSUMER LAW – accessorial liability – persons who owned or managed company CONSUMER LAW – remedies – declarations
Legislation:	Competition and Consumer Act 2010 (Cth) s 155, sch 2 ss 2, 18, 29(1)(a), 29(1)(d), 29(1)(h), 29(1)(l), 50(1)(a) Evidence Act 1995 (Cth) ss 97, 140 Fair Trading Act 1987 (NSW) ss 42, 58 Occupational Health and Safety Regulation 2001 (NSW) cl 20 Trade Practices Act 1974 (Cth) ss 52, 53(a), 53(d), 53(f), 60, 64, 75B
Cases cited:	Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] ATPR 42-290; [2009] FCA 682 Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472 Australian Competition and Consumer Commission v McCaskey (2000) 104 FCR 8 Australian Competition and Consumer Commission v Optell Pty Ltd (1998) 41 IPR 49 Australian Securities and Investments Commission v Accounts Control Management Services Pty Ltd [2012] FCA 1164 Briginshaw v Briginshaw (1938) 60 CLR 336 Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 Darwin Bakery Pty Ltd v Sully (1981) 36 ALR 371 Gardam v George Wills & Co Ltd (1988) 82 ALR 41 Giorgianni v R (1985) 156 CLR 473 Given v Pryor (1979) 39 FLR 437 Green v Ford (1985) ATPR 40-603 Hodges v Webb [1920] 2 Ch 70 Janssen Pharmaceuticals Ltd v Pfizer Pty Ltd (1985) 6 IPR 227 Mark Foys Pty Ltd v TVSN (Pacific) Ltd (2000) 104 FCR 61 Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 Pereira v Director of Public Prosecutions (1988) 82 ALR 217 Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 Yorke v Lucas (1985) 158 CLR 661
Date of hearing:	1 July 2013, 2 July 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	300
Counsel for the Applicant:	Mr B Hatfield
Solicitor for the Applicant:	Australian Government Solicitor
Solicitor for the First Respondent:	The first respondent did not appear
Solicitor for the Second, Third and Fourth Respondents:	Mr G Delaney of O’Neills Law

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 547 of 2012

JUDGE:	FARRELL J
DATE OF ORDER:	13 March 2015
WHERE MADE:	SYDNEY

JUDGE:	FARRELL J
DATE:	13 March 2015
PLACE:	SYDNEY