Commissioner for Consumer Affairs v Goros

Supreme Court of South Australia
(Civil)
COMMISSIONER FOR CONSUMER AFFAIRS v GOROS & ANOR
[2022] SASC 107
Judgment of the Honourable Chief Justice Kourakis
TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - CONSUMER PROTECTION - MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS
TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - CONSUMER PROTECTION - ACCEPTING PAYMENT WITHOUT INTENDING TO SUPPLY
TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - CONSUMER PROTECTION - UNCONSCIONABLE CONDUCT
This is a claim brought by the Commissioner for Consumer Affairs alleging breaches of the Australian Consumer Law against two respondents. The first respondent is a natural person who held licences as a demolition contractor, waste transporter and asbestos remover. The second respondent is a company of which the first respondent is the sole director, secretary and shareholder.
The applicant alleges that in 2016, the first respondent repeatedly engaged in a scheme designed to coerce consumers into paying additional fees to remove and dispose of asbestos contaminated material which either was not present or in the alternative, was present in a lesser volume than represented and not lawfully removed, transported and disposed of in accordance with the relevant regulations. The applicant relies on the accounts of eight consumers relating to demolition works and submits that in each case, there was no asbestos on site and that the first respondent falsely represented to the consumers that there was for profit or gain.
The Applicant submits that in relation to each of the eight cases, the first respondent’s conduct amounts to misleading and deceptive conduct and/or false and misleading representations in contravention of ss 18, 21, 29(1)(b)(i) and 36(1) and (4) of the ACL.
While the Respondents were represented early in the proceedings, the Respondents’ solicitors ceased acting before the trial but after the trial date was set. When the trial commenced on 2 August 2021 and continued on 12 August 2021, there was no appearance from the Respondents. Accordingly, the Court has not heard evidence or received oral or written submissions from the Respondents.
Held, per Kourakis CJ:
The First and Second Respondents each contravened the Australian Consumer Law by:
1.Engaging in conduct that was misleading and deceptive, and likely to mislead and deceive, in contravention of s 18(1) in relation to the removal, transport and disposal of asbestos contaminated material.
2.Making false and misleading representations as to:
a.      the need to remove asbestos and asbestos contaminated material from properties owned by the consumers in contravention of s 29(1)(l).
b.      the price of demolition services and the removal of construction and demolition waste from the consumer’s properties in contravention of s 29(1)(i) in representing that additional costs were to be incurred in dumping the general construction and demolition waste as asbestos contaminated material when no such costs were actually incurred.
c.      The standard, quality and grade of construction and demolition waste removal, transport and disposal services in contravention of s 29(1)(b) in representing that such services would be conducted in accordance with relevant legal requirements for the removal, transport and disposal of asbestos contaminated material when such requirements were not met.
3.Wrongly accepting payment for the lawful removal, transport and disposal of asbestos contaminated material when the first respondent had not, and had no intention to, provide such services, in contravention of s 36(1).
4.Engaging in unconscionable conduct in contravention of s 21 by the aforementioned breaches of the Australian Consumer Law (SA) and by the First Respondent exploiting his position and bargaining power with respect to the consumers, using undue pressure and tactics, not acting in good faith and otherwise engaging in conduct which is against society’s norms of good conscience.

Fair Trading Act 1987 (SA) ss 5(1), 13, 14; Australian Competition and Consumer Act 2010 (Cth) Schedule 2 ss 4, 18(1), 21, 22(1)(a), 22(1)(d), 22(1)(e), 22(1)(I), 29(1)(b), 36(1), 36(4), 224(1)(e), 232(1)(e); Work Health and Safety Regulations 2012 (SA) s 487(1); Work Health and Safety Act 2012 (SA) ss 8, 163, 165, 195, 274; Legislation Interpretation Act s 14; Environment Protection Act 1993 (SA), referred to.
Jones v Dunkel (1959) 101 CLR 298; Australian Securities and Investments Commission v Kobelt [2019] HCA 18; (2019) 267 CLR 1, applied.
Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2020] FCAFC 130; Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd (in liq) (No 2) [2017] FCA 709; Competition and Consumer Commission v Quantum Housing Group Pty Ltd [2021] FCAFC 40; Pitt v Commissioner for Consumer Affairs [2021] SASCA 24; Paciocco v Australia & New Zealand Banking Group Limited [2015] FCAFC 50; Kent v Wotton & Byrne Pty Ltd [2006] TASSC 8; Sheldon v Sun Alliance Australia Limited (1989) 53 SASR 97; Grivas v Brookes (1997) 69 SASR 532; Martin v Osborne (1936) 55 CLR 367, discussed.
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; ASIC v Fortescue Metals Group Pty Ltd (No 5) [2009] FCA 1586; (2009) 264 ALR 201; Australian Securities and Investments Commission v Macdonald (No 11) [2009] NSWSC 287; Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682; Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 634; 317 ALR 73; Comite Interprofessionnel du Vin de Champagne v Powell [2015] FCA 1110; 330 ALR 67; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; Traderight (NSW) Pty Ltd v Bank of Queensland Ltd [2015] NSWCA 94; Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640; Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; Australian Competition and Consumer Commission v Woolworths Limited [2019] FCA 1039; Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; 224 CLR 193; Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90; Australian Competition and Consumer Commission v Medibank Private Pty Ltd (2018) 267 FCR 544; Australian Competition and Consumer Commission v EDirect Pty Ltd [2008] FCA 65; Australian Competition and Consumer Commission v Billbusters Pty Ltd [2003] FCA 423; Australian Competition and Consumer Commission (ACCC) v Bio Enviro Plan Pty Ltd [2003] FCA 232; Barton v Westpac Banking Corp (1983) 50 ALR 397, considered.

COMMISSIONER FOR CONSUMER AFFAIRS v GOROS & ANOR
[2022] SASC 107
Civil
KOURAKIS CJ.
Introduction
The Parties
Procedural background

The Commissioner’s case
Australian Consumer Law (SA)
Sections 18 and 29 of the ACL: Misleading and deceptive conduct and false or misleading representations
Sections 21 and 22 of the ACL: Unconscionable conduct
Section 36 of the ACL: Wrongly accepting payment

Asbestos regulation in South Australia
Dangers associated with asbestos
Removal of asbestos
Transport and disposal of asbestos
Asbestos disposal findings
Disposal evidence
Disposal findings

The demolitions
The Berry demolition
The Cvorkov demolition
The Ho demolition
The Ji demolition
The Penna demolition
Neville Penna evidence
Wayne Penna evidence
Truss Evidence

The Masters demolition
The Ahmed demolition
The Nazari demolition
Consideration
Hindmarsh Demolition findings
The asbestos findings
Service and cost representation findings
Unconscionability
Wrongly accepting payment
Liability of the second respondent
Orders
Introduction

This is a statutory claim brought by the Commissioner for Consumer Affairs (the Commissioner) alleging breaches of the Australian Consumer Law (SA)[1] (ACL) against the first respondent John Goros (Goros) and the second respondent, a company in liquidation called Demolition Experts Pty Ltd (DE) in the course of providing demolition services.
[1] The Australian Consumer Law compromises the ‘Australian Consumer Law Text’ as defined by the Fair Trading Act 1987 (SA), ss 13 and 14. The Australian Consumer Law Text is found at Schedule 2 to the Competition and Consumer Act 2010 (Cth) (the CCA). The legislative principles are discussed in detail below.
The claims are founded on a substantial factual matrix involving eight consumers (the consumers) in 2016 which, on the Commissioner’s case, demonstrate a scheme devised by the respondents to mislead and deceive them. The respondents have not actively participated in these proceedings for some time. A defence was filed on behalf of Goros in March 2020 which broadly denied the factual circumstances alleged by the Commissioner. Accordingly, the Commissioner asks the Court to make a significant number of factual findings in affidavit and documentary evidence filed by the Commissioner which has not been challenged by the respondents. In these circumstances, counsel for the Commissioner has invited the Court to take a staged approach to the matter. First, that the Court make factual findings and order any declaratory relief and subsequently, that the Court hear the parties further as to what, if any, penalties might follow. I adopt that approach.
It is convenient first to say something about the parties in these proceedings and make some observations about a number of procedural matters.
The Parties
The Commissioner is responsible for the administration and regulation of the ACL in South Australia pursuant to ss 5 (1) and 14 of the Fair Trading Act 1987 (SA) (FTA). He has brought these proceedings in that capacity.
Goros is a natural person who, until 27 June 2016, was known as John Gorcilov.[2] Goros held a licence under the Building Work Contractor’s Act 1995 (SA) as a demolition contractor. He also held a licence under the Environment Protection Act 1993 (SA) (EP Act) permitting him to transport waste subject to certain conditions (the EP licence) as well as a Class B asbestos removal licence issued by SafeWork SA (the SafeWork SA licence). The SafeWork SA licence was suspended from 4 April 2016 and cancelled on 3 June 2016.
[2] This is admitted by the first respondent in the Defence. For ease, throughout these reasons Goros will be used to mean both Goros and Gorcilov.
The second respondent, DE, was a company incorporated under the Corporations Act 2001 (Cth). It is not in dispute that in 2016 Goros was the sole director, secretary and shareholder of DE as well as an employee. At the time the Commissioner commenced these proceedings, DE was in liquidation and the Commissioner sought leave pursuant to s 471B of the Corporations Act 2001 (Cth) to proceed against the company in liquidation. Mr Anthony Cant was the appointed liquidator. In July 2021, solicitors for the Commissioner were notified that DE had been wound up in July 2020 and had been deregistered with the Australian Securities and Investment Commission (ASIC) in October 2020. The Commissioner therefore made an application to reinstate the registration of the second respondent with ASIC. I made orders granting that application on 2 August 2021.
Central to this case is the role of ‘Hindmarsh Demolition’. The Commissioner invites the Court to find that Hindmarsh Demolition was the unregistered trading name of the second respondent and that this business (the Hindmarsh Demolition business) was operated on a day-to-day basis by the first respondent. In his defence, Goros admits only that DE traded as Hindmarsh Demolition but he otherwise denies allegations about its operations and control. The Commissioner therefore invites the Court to make a number of factual findings about the role and operations of Hindmarsh Demolition. I turn to this further below.
Finally, the Commissioner also contends, and it is clear on the ASIC records in evidence, that Goros was the director of several other companies. Based on those materials and in the absence of any evidence to the contrary, I find that Goros was also director of Burnside Property Investments Pty Ltd, Pfeffer & Icolaro DIY Asbestos & Demolition Pty Ltd,[3] Lamborghini Car Sales Pty Ltd, Demolition Services Pty Ltd, Mt Osmond Developments Pty Ltd, Lamborghini Pty Ltd, Precision Real Estate Group Pty Ltd and Australian Civil Earthmovers Pty Ltd. It is not suggested by the Commissioner that these other companies played any role in the day-to-day running of the Hindmarsh Demolition business other than in the case of Lamborghini Pty Ltd receiving into its bank accounts payments from consumers. On the basis of the same records, I am also satisfied Goros was the trustee of ‘Wingfield Property Investment Trust’ in which capacity he held the business name ‘Dublin Asbestos Waste Facility’. The Dublin Asbestos Waste Facility bears greater relevance to the claim for the reasons explained below.
Procedural background
[3] This was a company name which Goros incorporated following the cancellation of his SafeWork SA licence. Icolaro and Pfeffer are the names of two SafeWork SA inspectors.
The Commissioner commenced these proceedings by Statement of Claim dated 24 December 2019. A defence was filed on behalf of the first respondent by Caldicott Lawyers on 13 March 2020. In May 2020, Goros filed a notice to remove Caldicott Lawyers from the Court file. A Notice of Acting was filed on 17 February 2021 appointing Mark Gustavsson and Associates (MGA) to act on behalf of both Goros and DE. However, with leave of the Court, a representative from MGA had appeared earlier on Goros’ behalf at a directions hearing in November 2020 at which time the trial date was set for 2 August 2021.
The trial duly commenced on 2 August 2021. There was no appearance for Goros or DE on that date. Counsel for the Commissioner, Mr Ambrose, referred the Court to an affidavit affirmed on 30 July 2021 by Ms Ferguson, a solicitor at the Crown Solicitor’s Office (CSO), which deposed that on 26 July 2021, Mr Gustavsson advised CSO that MGA no longer acted for the respondents and intended to formally withdraw from the file. Ms Ferguson also had direct contact from Goros to the effect that he was self-represented but did not intend to appear at trial.
On that date, I gave leave for MGA to be removed from the Court file. The matter was called outside the courtroom and within the Court precinct by a clerk of the Court without any response. The clerk gave evidence under oath and accordingly, I was satisfied that Goros did not make any appearance and the matter proceeded accordingly. Mr Ambrose made brief oral submissions on that date and the matter was adjourned to 12 August 2021 with written submissions to be received by 11 August 2021 at midday.
On 12 August 2021, Mr Ambrose appeared to make oral submissions on behalf of the Commissioner in support of his detailed written submissions filed on 11 August 2021. I acknowledge the assistance I have received from Mr Ambrose’s comprehensive and careful analysis of the evidence. There was again no appearance for Goros or DE, despite evidence that the respondents were on notice of the hearing. An email was received by the Court late in the evening on 11 August 2022 from Goros. Mr Ambrose submitted that in the circumstances, I should not receive Goros’ email in evidence nor have regard to its contents. I acceded that request.
In addition to the detailed written submissions before the Court, Mr Ambrose sought to rely on a number of affidavits which had been filed with the Court prior to the hearing. Accordingly, the following affidavits were read into evidence (the affidavits):
1.Affidavit of Sheeper Ahmed affirmed 15 July 2021;
2.Affidavit of Michael Berry affirmed 15 July 2021;
3.Affidavit of Aleksandar Cvorkov affirmed 28 July 2021;
4.Affidavit of Lien Ho affirmed 14 July 2021;
5.Affidavit of Hui Ji sworn 14 July 2021;
6.Affidavit of Brett Allan Masters affirmed 16 July 2021;
7.Affidavit of Reza Nazari affirmed 19 July 2021;
8.Affidavit of Shay Nazari affirmed 19 July 2021;
9.Affidavit of Neville John Penna affirmed 15 July 2021;
10.Affidavit of Wayne Penna affirmed 15 July 2021;
11.Affidavit of Russell Paul Truss sworn 16 July 2021;
12.Affidavit of Chloe Canning affirmed 16 July 2021;
13.Affidavit of Matteo Icolaro sworn 28 July 2021;
14.Affidavit of Brett Pfeffer affirmed 16 July 2021;
15.Affidavit of Simon Colin Shillabeer affirmed 16 July 2021;
16.Affidavit of David Llewellyn Parkinson affirmed 16 July 2021; and
17.Affidavit of Leon March affirmed 30 July 2021.
Mr Ambrose also relied on a further bundle of documents contained in the Tender Books filed by the Commissioner by reference to an index entitled ‘Tender Documents Outside of Affidavit Book’. Accordingly, the documents listed in the index were received into evidence (the tender documents).
In addition to the affidavits and the tender documents, I have also had regard to an additional affidavit of Ms Ferguson affirmed on 10 August 2021. In light of the contents of that second affidavit of Ms Ferguson, I am satisfied that Ms Ferguson properly served the tender documents and the affidavits on Goros. It follows that I am satisfied that the respondents were on notice of the Commissioner’s case against them and had the opportunity to object to any of the affidavit or documentary evidence being received by the Court and to seek to cross‑examine any of the Commissioner’s witnesses. I was satisfied that the respondents failed to avail themselves of those opportunities and accordingly, those materials were received into evidence unchallenged.
In these circumstances, the Commissioner submits that the Court should accept in full the evidence before the Court. The Commissioner further submits that it is open to the Court to make Jones v Dunkel[4] inferences in respect of all factual findings sought by the Commissioner which were within Goros’ knowledge. The Commissioner says two inferences are available. First, an inference that the evidence of the absent witness (Goros) would not have assisted the respondents. Second, an inference unfavourable to the respondents where Goros would have been in a position to cast light on any other inference which might have been drawn.[5] I will deal with the factual matrix which underlies the Commissioner’s claim in detail below, but where Goros has failed to give evidence in support of a matter within his knowledge, I have made Jones v Dunkel inferences where indicated.
[4] (1959) 101 CLR 298.
[5] Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, 384-385 at [63]-[64] (Heydon, Crennan and Bell JJ); see also ASIC v Fortescue Metals Group Pty Ltd (No 5) [2009] FCA 1586, (2009) 264 ALR 201; Manly Council v Byrne [2004] NSWCA 123 at [51] (Campbell J, with whom Beazley JA and Pearlman AJA agreed); and Australian Securities and Investments Commission v Macdonald (No 11) [2009] NSWSC 287 at [1137] (Gzell J).
The Commissioner’s case
As above, the Commissioner alleges that in 2016 Goros repeatedly engaged in a scheme designed to coerce consumers into paying additional fees to remove and dispose of asbestos contaminated material which either was not present or in the alternative, was present in a lesser volume than represented and not lawfully removed, transported and disposed of in accordance with the relevant regulations.

The Commissioner’s case relies on the accounts of eight consumers relating to demolition works at locations which are set out in the table below:

Consumers Address Demolition Date range

Michael Berry 1 Mines Road, Campbelltown 20 January 2016 – 9 February 2016

Alex and Adriana Cvorkov 40 Saint Georges Terrace, Glandore Prior to 5 February 2016 – 10 February 2016

Lien Ho 15 Romilly Avenue, Manningham 4 May 2016 – 14 May 2016

Hui Ji (Jackie) 2 Whelan Avenue, Camden Park 23 May 2016 – 27 May 2016

Neville Penna 2 Nunyah Avenue, Park Holme 19 September 2016 – 29 September 2016

Brett Masters 23 Fairford Terrace, Semaphore Park 21 November 2016 – 23 November 2016

Dr Sheeper Ahmed 14 Hammond Road, Findon Late November 2016 – early December 2016

Shay and Reza Nazari (the Nazaris) 10 Mayfield Street, Modbury Heights 6 December 2016 – 12 December 2016

Although there are variations to the factual circumstances in the case of each consumer, the common elements of the scheme employed by Goros were:
1.Goros would provide each consumer with a quotation to undertake the requested demolition works. Except in one case,[6] this was provided in writing.
[6]    The exception being the Ho demolition.
2.The quotation document would contain a quoted price for the works as well as a block paragraph containing standard terms and conditions. The same terms and conditions were also generally contained in the ‘tax invoice’ provided at the end of the works. An example of the standard invoice terms are extracted below (errors in original):[7]
[7]    Example drawn from the Berry Affidavit. There are some minor variations to the standard invoices terms between consumers but they do not impact the standard terms around asbestos removal and are otherwise not material to the present case. To that end, these will henceforth be termed ‘the standard invoice terms’.
Allowances have been made for the following demolition of your house: sheds, pathways, driveway, footings, bricks, all debris and waste material made during demolition. Oversize and large or significant trees out of the ordinary are not included unless they have been agreed by us in writing. Asbestos removal and approvals is included except for asbestos that is not visibly seen at the time of inspection and or attached to concrete or friable asbestos. All asbestos is removed within SafeWork SA and EPA Guide lines no allowances have been made for footings or slabs greater than 400 millimetres x 600 millimetres in any single direction from ground level. No allowances have been made for concrete piers or underground structures. Trucks entering & leaving the site may damage or crack the footpaths, street, kerbs & street. Insufficient compaction & weakened footpaths & road structure may cause this. We try to prevent such damage occurring but we do not take any responsibility to repair or replace them. Neighbouring boundary walls that act as boundary lines generally have footings and piers, which support the structure, upon removal, they may damage the neighbour’s adjacent structure, fence or footpath. We take no responsibility to repair or replace them in the event of damage. We will notify you if we think damage will be cause on boundary lines. Block levelled to the contour of the land. All salvage items have been taken into account therefore the removal of them will increase this quote. This quote does not include the disconnection of services i.e. electricity and gas. General house hold rubbish and non-fixed items is not included. Full payment is due at the completion of job or progress payments during works. Upon paying a deposit or signing the acceptance below you agree to the above terms and conditions.
(emphasis added)
Emphasis has been placed on the terms applicable to asbestos removal and disposal (the standard asbestos terms). The standard asbestos terms expressly state that visible asbestos was included in the quoted price but asbestos in the footings, roof or foundations of the property in the course of demolition would not be included and accordingly, would attract extra cost if discovered. These standard asbestos terms were central to the scheme allegedly employed by Goros.
3.Once the quote was accepted by the consumer and work had commenced, Goros would contact the consumer to advise that asbestos had been discovered on site, and in most cases, in the footing of the house. A conversation would then follow wherein Goros would tell the consumer:
a.     That asbestos had been discovered (in the footings of the house);
b.     The asbestos had been mixed into the other demolition rubble and that all materials would have to be dealt with and disposed of in a specialised way;
c.     The requirements of the specialised services to remove and dispose of the asbestos contaminated material would be at an extra cost to the consumer.
4.Goros would prevail on the consumer to paying the additional costs.[8]
5.Goros removed, transported and disposed of the demolition waste as non-asbestos waste at a facility which was not licenced to accept asbestos waste and did not incur any additional cost.
[8]    Except in the case of the Nazaris, who refused to pay additional monies.
The Commissioner’s primary position is that in each case, there was no asbestos on site and that Goros falsely represented to the consumers that there was asbestos contamination for his profit or gain. In the alternative, the Commissioner says that Goros overstated the extent to which there was asbestos-contaminated material on site and then failed to lawfully remove, transport and dispose of this waste in accordance with the relevant regulations. The Commissioner invites the Court to make these findings, on the evidence in each count and/or with the assistance of similar fact reasoning based on the common pattern of behaviour.
The Commissioner then invites the Court to conclude that in each and every case, Goros’ conduct amounts to misleading and deceptive conduct and/or false and misleading representations in contravention of ss 18 and 29(1)(b), (i) and (l) of the ACL. Those representations being:
1.A representation that there was additional asbestos on the property, as stated by Goros, requiring removal (the asbestos representations).
2.That the demolition services (which included the removal and disposal of asbestos in accordance with SafeWork SA and EPA guidelines) were of a particular standard, quality or grade (the service representations).
3.A representation that the demolition services would incur the additional costs associated with asbestos dumping (the cost representations).
The Commissioner further invites the findings that Goros’ conduct contravenes s 36(1) and (4) of the ACL in accepting payment for services he did not intend to supply, and in fact, did not supply, respectively. Finally, the Commissioner seeks a finding that Goros has contravened s 21 of the ACL on the basis that Goros’ conduct is unconscionable.
At this present stage, declaratory relief is sought against both respondents for the breaches claimed. In the event the Court is only prepared to grant declaratory relief with respect to the first respondent, the Commissioner seeks declaratory relief that the second respondent was knowingly concerned in and a party to the contraventions of the first respondent.[9]
[9] For the purposes of relief under ss 224(1)(e) and 232(1)(e) of the Australian Consumer Law (ACL), being schedule 2 to the Competition and Consumer Act 2010 (Cth).
The Commissioner also seeks penalties in respect of any findings of breaches of the ACL. As above, this is a matter on which the parties will be heard subsequent to this decision.
Before turning to the facts, it is helpful to set out the legislative principles which apply in this case.
Australian Consumer Law (SA)
The ACL (SA) is enacted by the (FTA) by the adoption of Schedule 2 of the Commonwealth’s Competition and Consumer Act 2010 (Cth) (the CCA) as the applicable consumer law text in South Australia.[10] By Schedule 2 of the CCA, the ACL places prohibitions on certain behaviours to protect consumers. Relevant to these proceedings are the specific provisions set out below.
Sections 18 and 29 of the ACL: Misleading and deceptive conduct and false or misleading representations
[10] See sections 13 and 14 of the FTA.
Section 18 of the ACL establishes the prohibition in respect of misleading and deceptive conduct in trade or commerce. Section 29(1) of the ACL establishes a similar prohibition on the making of false or misleading representations. In respect of the latter, the Commissioner relies on three particular species of impugned representations as follows:
·representations that services are of a particular standard, quality, value or grade: s 29(1)(b) ACL;
·representations as to the price of goods or services: s 29(1)(i) ACL;
·representations as to the need for any goods or services: s 29(1)(l) ACL.
Although, s 29(1) deals with ‘false or misleading representations’ and s 18 deals with ‘misleading and deceptive conduct’, there is no material difference.[11] Where a particular representation is found to impugn s 18, in most cases it would also impugn s 29(1).
[11] Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2020] FCAFC 130 at [21] citing Australian Competition and Consumer Commission v Dukemaster Pty Ltd[2009] FCA 682 at [14] per Gordon J; Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd[2014] FCA 634; 317 ALR 73 at [40] per Allsop CJ; Comite Interprofessionnel du Vin de Champagne v Powell[2015] FCA 1110; 330 ALR 67 at [170] per Beach J.
Conduct is ‘misleading and deceptive’ if it, as a whole, has ‘a tendency to lead another into error’.[12] To reach such a finding requires objective consideration of the nature and character of the conduct of the agent (in this case, Goros) taking into account the context in which the conduct occurred and the other situational factors including what both the agent and consumer knew about the other as a result of the nature of their dealings and the conversations between, or which each may be taken to have known.[13]
[12] Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, Campbell v Backoffice Investments Pty Ltd [2009] HCA 25, Traderight (NSW) Pty Ltd v Bank of QueenslandLtd [2015] NSWCA 94 and Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640 at [39].
[13] Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592.
In Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2020] FCAFC 130, Wigney, O’Bryan and Jackson JJ cogently set out five principles relevant to this enquiry as follows at [22]:
(a) First, conduct is likely to mislead or deceive if there is a real or not remote chance or possibility of it doing so: see Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 (Global Sportsman) at 87, referred to with apparent approval in Butcher at [112] by Gleeson CJ, Hayne and Heydon JJ; Noone (Director of Consumer Affairs Victoria) v Operation Smile (Australia) Inc (2012) 38 VR 569 at [60] per Nettle JA (Warren CJ and Cavanough AJA agreeing at [33]).
(b) Second, it is not necessary to prove an intention to mislead or deceive: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 228 per Stephen J (with whom Barwick CJ and Jacobs J agreed) and at 234 per Murphy J; Puxu at 197 per Gibbs CJ; Google Inc v ACCC (2013) 249 CLR 435 (Google) at [6] per French CJ and Crennan and Kiefel JJ.
(c)Third, it is unnecessary to prove that the conduct in question actually deceived or misled anyone: Taco Bell at 202 per Deane and Fitzgerald JJ; Puxu at 198 per Gibbs CJ; Google at [6] per French CJ and Crennan and Kiefel JJ. Evidence that a person has in fact formed an erroneous conclusion is admissible and may be persuasive but is not essential. Such evidence does not itself establish that conduct is misleading or deceptive within the meaning of the statute. The question whether conduct is misleading or deceptive is objective and the Court must determine the question for itself: see Taco Bell at 202 per Deane and Fitzgerald JJ; Puxu at 198 per Gibbs CJ.
(d)Fourth, it is not sufficient if the conduct merely causes confusion: Taco Bell at 202 per Deane and Fitzgerald JJ; Puxu at 198 per Gibbs CJ and 209-210 per Mason J; Campomar at [106]; Google at [8] per French CJ and Crennan and Kiefel JJ.
(e)Fifth, where the impugned conduct is directed to the public generally or a section of the public, the question whether the conduct is likely to mislead or deceive has to be approached at a level of abstraction where the Court must consider the likely characteristics of the persons who comprise the relevant class to whom the conduct is directed and consider the likely effect of the conduct on ordinary or reasonable members of the class, disregarding reactions that might be regarded as extreme or fanciful: Campomar at [101]-[105]; Google at [7] per French CJ and Crennan and Kiefel JJ.
As described in paragraph [21] above, in respect of each consumer, the Commissioner relies on representations allegedly made by Goros as to asbestos, service and cost. While the asbestos representations relate to past discovery of asbestos, the service and cost representations relate to matters which would arise in the future. In that respect, the Commissioner relies on the evidentiary aid in s 4 of the ACL which captures representations about future matters in circumstances where the representor did not have reasonable grounds for making them. This provision expressly places an evidentiary burden on the representor to adduce evidence to show that he or she had reasonable grounds to make those representations.[14] If no quantity or significant quantity of asbestos was found by Goros there could be no reasonable basis on which to make those representations. In any event the last two representations are consequential on the first, and might alternatively have been pleaded as the present discovery of asbestos in amounts and in locations which was excluded from the quoted amount by the standard asbestos terms.
[14] Australian Consumer Law, s 4(2).
The Commissioner submits that in the present case, in the absence of any evidence from Goros, this burden has not been met and it follows he did not have reasonable grounds. I accept that this must be the case. Importantly, however, this does not relieve the Commissioner of the primary evidentiary burden to establish their claims, on the balance of probabilities, that Goros breached ss 18 and/or 29(1) by virtue of his misleading representations.[15] Therefore, to the extent I am satisfied that Goros has otherwise breached ss 18 and/or 29(1) of the ACL, in respect of the future representations as to cost and service, it follows that Goros has not established he had reasonable grounds to make those representations.
Sections 21 and 22 of the ACL: Unconscionable conduct
[15] Australian Competition and Consumer Commission v Woolworths Limited [2019] FCA 1039 at [90] (Mortimer J).
Section 21 of the ACL deals with unconscionable conduct in the context of trade and commerce. It places a prohibition on a person, in trade and commerce, in connection with the supply or possible supply of goods or services from ‘engag[ing] in conduct that is, in the all the circumstances, unconscionable’.
Section 22 provides a non-exhaustive list of factors to which the Court may have regard for the purpose of considering unconscionable conduct in relation to the preceding section, including:
·The relative strengths of the bargaining positions of the parties: s 22(1)(a);
·Whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer by the supplier: s 22(1)(d)
·The amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from another supplier: s 22(1)(e)
·The extent to which the supplier and customer acted in good faith: s 22(1)(l).
In Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd (in liq) (No 2)[2017] FCA 709, Beach J helpfully set out propositions applicable to whether conduct is unconscionable for the purposes of this section:
[60] First, “unconscionability” means something not done in good conscience or conduct against conscience by reference to the norms of society. But that is to be understood and applied in the context of trade or commerce, but including consumer protection objectives directed at the requirements of honest and fair conduct free of deception (see generally Paciocco v Australia and New Zealand Banking Group Limited (2015) 236 FCR 199 at [259] to [304]). But one must be careful in using the phrase “norms of society” to ensure that the identification thereof is not interlarded with some distorted subjective view of social philosophy. It is fraught with risk to move beyond the explicit and implicit norms enshrined in and bounded by the statutory language of ss 21 and 22 construed in context, being trade or commerce, notwithstanding the apparent breadth of s 21(4) and the non-limiting prefatory words of s 22(1). Moreover, the evaluation of unconscionability must not be decontextualised from the particular case under consideration.
[61] Second and relatedly, in order to determine whether conduct is unconscionable, it is necessary to look at all the conduct, by “[s]tanding back and looking at the whole episode” (Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90 at [44]).
[62] Third, as the norms of society include statutory prohibitions on deceptive conduct and the regulation of unsolicited consumer agreements, deceptive practices and contraventions of provisions concerning unsolicited consumer agreements can form part of the “whole episode”, for the purpose of assessing whether, in all the circumstances, the conduct in question is unconscionable (Lux Distributorsat [41] to [44]).
[63] Fourth, s 22(1) of the ACL sets out a non-exhaustive list of factors to which the Court may have regard for the purpose of determining whether a person has contravened s 21. The matters enumerated assist in understanding the scope of the meaning of unconscionable conduct, but the presence of one or more matters contained in s 22(1) (or indeed their absence) is not necessarily determinative.
[64] Fifth, s 21(4)(b) of the ACL states that it is the intention of Parliament that s 21 is “capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour”.
[65] Relatedly, proof of examples of similar unconscionable conduct in respect of individual cases can be used to demonstrate the features of a system of conduct or pattern of behaviour, even though no particular individual need be identified as having been disadvantaged.
[66] Finally, the evidence of unconscionable conduct may be quite varied and, in some cases, not even substantial, but still form part of an overall pattern or system of unconscionability. It may be established by a systemic pattern of behaviour involving an accumulation of minor incidents.
Importantly, this statutory species of unconscionability is not bound to the principles of unconscionability in unwritten law: s 21(4)(b) of the CCA. The impact of this has been the subject of recent judicial consideration.
In Australian Securities and Investments Commission v Kobelt,[16] the High Court raised the question of whether a ‘special disadvantage', a key element of the equitable doctrine of unconscionability, was an element of statutory unconscionability.[17] In that matter, Mr Kobelt ran a general store in Mintabie, South Australia selling a range of products from food and basics to second-hand cars. He established a system, called a ‘book-up’ system, wherein he would provide ‘credit’ to customers in exchange for their bank card and pin numbers allowing him to directly deduct monies from their accounts and make further offers of ‘store credit’ if the balance was zero. He maintained records, which although rudimentary, were not dishonest. In most cases, the customers were poor, had low levels of literacy and were Indigenous, but they also had general knowledge of the book-up system and many were satisfied with the arrangement as it provided certain advantages to them. The Full Court of the Federal Court found that Kobelt had engaged in unconscionable conduct for the purposes of relevant statutory provision. However, the High Court held by majority (Kiefel CJ, Bell, Gageler and Keane JJ), that he had not. Nettle, Gordon and Edelman JJ, in dissent, delivered three separate judgments with different reasons for their conclusions. Importantly, the question as to whether a ‘special disadvantage’, an element of equitable unconscionability, was a necessary element of statutory unconscionability was raised but not entirely resolved by the judgments delivered in Kobelt by the High Court.
[16] [2019] HCA 18; (2019) 267 CLR 1.
[17] In that case, the relevant provision being considered was s 12CB of the Australian Securities and Investments Commission Act 2001(Cth), but this has been considered to have similar features of the statutory unconscionability under s 21 ACL: see Competition and Consumer Commission v Quantum Housing Group Pty Ltd [2021] FCAFC 40 at [78] (Allsop CJ, Besanko and McKerracher JJ) and Pitt v Commissioner for Consumer Affairs [2021] SASCA 24 at [125] (Doyle, Livesey and Bleby JJA).

Further judicial consideration followed. In the recent decision of Pitt v Commissioner for Consumer Affairs,[18] the Court of Appeal of this State (Doyle, Livesey and Bleby JJA) held that the High Court in Kobelt had unshackled s 21 of the ACL from the constraints of the equitable doctrine of unconscionability to favour a more flexible and broader approach. In reaching that conclusion, their Honours adopted the remarks of the Full Federal Court (Allsop CJ, Besanko and McKerracher JJ) in Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd[19] (Quantum Housing) which characterised the Kobelt decision as having removed both the requirement to establish special disadvantage, and ‘the necessary requirement that there be a form of pre-existing vulnerability or disadvantage existing otherwise than as an attribute or feature of the relationship or dealings between the parties’.[20]
[18] [2021] SASCA 24.
[19] [2021] FCAFC 40.
[20] Pitt at [156].
It is useful to reflect on the facts of Quantum Housing. In that case, the ACCC alleged that Quantum systematically pressured investors participating in the National Rent Affordability Scheme to terminate agreements with existing property managers and engage a property manager approved by Quantum. On appeal, the Full Federal Court upheld the trial Judge’s finding that Quantum’s conduct amounted to unconscionable conduct for the purposes of s 21 of the ACL even though the investors were not in a position of special disadvantage. The Full Court considered that that result was consistent with the view of a majority of the Justices in Kobelt. The Full Court nonetheless, were mindful of the seriousness of a finding of unconscionable conduct and accepted that there should not be a loose or diffuse construction of statutory unconscionability in the ACL.[21]
[21] Quantum Housing at [88] – [89] citing Unique International College Pty Ltd v Australian Competition and Consumer Commission [2018] FCAFC 155 at [155], Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; 224 CLR 193, 210-211 at [45]; Paciocco v Australia & New Zealand Banking Group Limited [2015] FCAFC 50 at [300].
The Full Court also noted the inherent difficulty in prescribing what might constitute unconscionable conduct for the purposes of statute, although they surmised that impugned conduct would be that which can be characterised as ‘dishonesty, predation, exploitation, sharp practice, unfairness of a significant order, a lack of good faith, or the exercise of economic power in a way worth of criticism’.[22] They are also referred to behaviours which deviate against ‘business conscience’ in the sense drawn from the ACL, the conduct and the norms of equity and the common law.[23] The Full Court also drew on the values identified by Allsop CJ in Paciocco:[24]
The evaluation includes a recognition of the deep and abiding requirement of honesty in behaviour; a rejection of trickery or sharp practice; fairness when dealing with consumers; the central importance of the faithful performance of bargains and promises freely made; the protection of those whose vulnerability as to the protection of their own interests places them in a position that calls for a just legal system to respond for their protection, especially from those who would victimise, predate or take advantage; a recognition that inequality of bargaining power can (but not always) be used in a way that is contrary to fair dealing or conscience; the importance of a reasonable degree of certainty in commercial transactions; the reversibility of enrichments unjustly received; the importance of behaviour in a business and consumer context that exhibits good faith and fair dealing...
[22] See also Unique at [155].
[23] Allsop CJ’s comments in Paciocco provide a few examples. See also Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90; Australian Competition andConsumer Commission v Medibank Private Pty Ltd (2018) FCR 344, 603 at [241].
[24] [2015] FCAFC 50 at [296].
The Full Court in Pitt, summarised the principles governing s 21 statutory unconscionability as follows:[25]
In summary, while the majority approach [in Kobelt] does not necessarily require consideration of the two limbs of the equitable doctrine, let alone satisfaction that they have been established, and in that sense permits a potentially broader or more flexible framework for analysis, their Honours’ approaches did not ultimately differ markedly from that which governs the equitable doctrine. In our view, given the nature of the Commissioner’s allegations in the present case, a similar grouping and analysis of considerations was appropriate. All of that said, Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd serves as a reminder that this style of analysis will not always be appropriate. There may be cases where statutory unconscionability arises without any pre-existing vulnerability or disadvantage on the part of the ‘weaker’ party.
(footnote omitted, emphasis added)
[25] Pitt at [161].
In the present case, the Commissioner’s allegations of unconscionable conduct are all directed to the category of conduct identified in the emphasised part of that paragraph, being the conduct of a kind considered to be sufficient by the Full Federal Court in Quantum Housing. There is no suggestion that there was any pre-existing vulnerability or special disadvantage suffered by any of the consumers, but rather the Court is invited to find, on the basis of the character and nature of Goros’ conduct, that it is unconscionable for the purposes of s 21 of the ACL.
Section 36 of the ACL: Wrongly accepting payment
In general terms, s 36 of the ACL prohibits a person, in trade or commerce, from accepting payment for goods or services which they did not, or did not intend to supply.
The relevant sub-sections are extracted below:
36 Wrongly accepting payment
(1)A person must not, in trade or commerce, accept payment or other consideration for goods or services if, at the time of the acceptance, the person intends not to supply the goods or services.
…
(4)A person who, in trade or commerce, accepts payment or other consideration for goods or services must supply all the goods or services:
(a) within the period specified by or on behalf of the person at or before the time the payment or other consideration was accepted; or
(b) if no period is specified at or before that time—within a reasonable time.
…
Section 36(1) expressly requires intent which may be inferred from conduct objectively measured. [26] The section requires an intent to not supply the same, or materially similar, services at the time of the acceptance of payment.[27] By contrast, s 36(4) does not contain an element of intention.
[26] Australian Competition and Consumer Commission v EDirect Pty Ltd[2008] FCA 65 at [28] (Reeves J); Australian Competition & Consumer Commission v Billbusters Pty Ltd [2003] FCA 423 at [72]-[73] (Kenny J); Australian Competition and Consumer Commission (ACCC) v Bio Enviro Plan Pty Ltd [2003] FCA 232 at [50] (Nicholson J); see also Barton v Westpac Banking Corp (1983) 50 ALR 397, 410 (Sheppard J).
[27] See generally Barton v Westpac Banking Corporation (1983) 50 ALR 397, 410 cited in Australian Competition & Consumer Commission v Billbusters Pty Ltd [2003] FCA 423 at [71] (Kenny J).
Section 36(1) of the Act addresses those cases in which a person does not intend to provide services at the time payment is made if not before. Section 36(4) will apply to cases of that kind if in keeping with the intention from the start, the service is not provided. It also extends to those cases in which a defendant intends to provide the services when the payment is received but subsequently fails to follow through with his or her intention: Conduct which contravenes ss 36(1) will probably also contravene s 36(2) save for the exceptional case in which the person’s conscience or external pressures bring a change of heart. However, it will commonly be the case that evidence capable of proving a contravention of s 36(2) will not be capable of proving the intention which is an element of a contravention of s 36(1). The primary utility of ss 36(2) is therefore as an alternative to an allegation of breach of s 36(1) when evidence of a dishonest intention is lacking.
In the present case, it is alleged that Goros accepted payment for the services of removal, transport and disposal of asbestos that he both did not intend to, and did not, in fact, supply.
Asbestos regulation in South Australia
I turn now to the regulation of asbestos disposal in South Australia as the Commissioner places significant emphasis on the dangers of asbestos in the construction industry and the legislative regimes that strictly regulate its removal, transport and disposal. The Commissioner relies on the affidavit evidence of senior staff of the regulatory agencies charged with responsibility under these Acts to establish the obligations placed on persons that remove, transport and dispose of asbestos waste.
In particular, these are affidavits from Mr Brett Pfeffer (Pfeffer), Manager of construction and utilities at SafeWork SA and Mr Simon Shillabeer (Shillabeer), Senior Investigations Officer at the EPA both of whom have extensive experience and knowledge in the area. The following is taken from those affidavits, which I accept to be credible and reliable.
Dangers associated with asbestos
Asbestos is a building and construction material, comprised of various mineral silicates,[28] which can be found in both powdered (friable) or bonded (non‑friable) forms. Due to its fire-retardant and insulative properties, it was used extensively in the building and construction industry up and until around 1987. Non-friable asbestos is commonly found in residential homes built prior to that time in eaves, internal and external panelling, splash backs and under floor tiles. Less commonly, asbestos can be found in the foundations of older properties as asbestos was sometimes used in formwork to box an area prior to the pouring of concrete foundations and was not subsequently removed. The use of asbestos in new builds was banned nationally from 31 December 2003.
[28] See definition, Work Health and Safety Regulations 2012 (SA), reg 5.
As a starting point, the Commissioner asks this Court to find that asbestos is a dangerous material with serious and long-term health impacts on persons who inhale the fibres. There is no scientific or medical evidence before the Court to that effect. Rather, the Commissioner has asked that the Court take judicial notice of these facts. Litigation heard by this and other courts concerning the danger posed by asbestos, the public and scientific discussion of dangers it presents over more than a century and the statutory responses to those dangers allows this Court to accept as notorious fact that asbestos is a dangerous material which can cause serious and long term health impacts on persons exposed to its fibres.
I pause to say that this is consistent with the evidence of the Commissioner’s professional witnesses many of whom, albeit absent any relevant scientific qualification, have worked in the construction and asbestos regulation industries for many years. In particular, Pfeffer, who has extensive experience in the management of the dangers posed by asbestos, deposes that asbestos can become easily airborne during renovations or demolition works and that when those fibres are inhaled, they can cause a variety of respiratory illnesses, including mesothelioma and lung cancer. In his experience, asbestos exposure is a leading cause of workplace illness and death. These health risks form the basis for the strict regulation of asbestos, and particularly over its removal and disposal by both SafeWork SA and the EPA and these measures taken are explained in the affidavits of Pfeffer and Shillabeer.
In addition, the Commissioner invites the Court to take note of certain matters which show that it is common knowledge in the community that asbestos is highly dangerous and can lead to fatal respiratory illnesses. The Commissioner points to objective factors, including:
1.Asbestos was subject to a national ban which commenced on 31 December 2003;
2.the carrying out of work involving asbestos is prohibited under the Work Health and Safety Act 2012 (SA) (WHS Act) and the Work Health and Safety Regulations 2012 (WHS Regs);[29]
3.Asbestos is the subject of codes of practice requiring its safe removal, management and control.[30]
[29] The regulatory scheme is discussed below at paras [59] to [60].
[30] The codes of practice are discussed below at paras [62] to [66].
Accordingly, the Commissioner says that the health risks associated with asbestos exposure are so well-known within the community that the consumers who engaged Goros were understandably concerned about asbestos and that this was a factor exploited by Goros to coerce them into paying him further money for its removal.
Judicial notice has previously been taken in respect of the dangers of asbestos. In Kent v Wotton,[31] the Tasmanian Supreme Court heard an appeal of a penalty issued by a Magistrate with respect to two breaches of the Workplace Health and Safety Act 1995 (Tas) and Workplace Health and Safety Regulations 1998 (Tas). Relevant to the question of the severity of the penalty was whether judicial notice ought to have been taken as to the life-threatening consequences of asbestos exposure. Considering the relevant provisions of the Evidence Act 2001 (Tas) and various cases, Blow J found that the Magistrate failed to take appropriate judicial notice of those serious long-term effects and as a result, the Magistrate had handed down ‘manifestly inadequate’ penalty. His Honour said as follows:
[12]… The removal of asbestos, both from buildings still in use and from buildings being demolished, and the extreme care that needs to be taken by workers involved in its removal, are now facts of modern life. I think it is generally known that it is inhalation of asbestos that can result in death. But is it common knowledge that the symptoms of a medical condition caused by asbestos exposure might not be detectible until years after the exposure? And is it common knowledge that such a condition, not detected until years after the exposure, can prove fatal? Judges and lawyers familiar with personal injuries litigation are likely to be aware of those facts, particularly because of the problems that plaintiffs with asbestos-related diseases and similar complaints have in relation to limitation periods. See Cartledge v E Jopling & Sons Ltd [1963] AC 768. But are ordinary members of the Tasmanian community generally aware of those facts? I think they are. There has been substantial media publicity in Australia in recent decades not just as to asbestos exposure sometimes being fatal, but also as to fatal asbestos-related illnesses becoming detectible many years after the exposure to asbestos. In my view there has been sufficient public discussion of asbestos exposure and its effects for it now to be commonly known that a person exposed to asbestos might not have any detectible medical condition as a result for many years, but might still become ill and die as a result of that exposure.
(emphasis added)
[31] Kent v Wotton & Byrne Pty Ltd [2006] TASSC 8.
I am persuaded that the regulations and restrictions around asbestos are well‑known and are indicative of a general understanding that asbestos exposure carries significant long-term health risks. Regulation of asbestos has been in place for many years. Education campaigns have been deployed to inform the public of the regulation of asbestos use and the reasons for it. I have no doubt that speaking generally the community knows of, and understands the reason for those regulations. I also adopt the comments of Blow J that the impacts of asbestos exposure have been the subject of media reports for many years and that those reports have reached the public at large.
Finally in this case, each of the eight consumers, despite their differing backgrounds and experiences, gave evidence of a general awareness about the health risks associated with asbestos exposure. This was even the case for a particular consumer, Ji, for whom English is a second language. Ji initially did not understand the English word for asbestos, but upon further research, realised what it meant and drew on a pre-existing understanding of the dangers of asbestos. I find this common knowledge amongst the consumers a telling indication of the high level of knowledge about the dangers of asbestos within the South Australian community at large.
Accordingly, I take judicial notice of the fact that asbestos is a dangerous material, which, when inhaled, can lead to fatal respiratory illness. I also take judicial notice of the fact that the health risks were generally well known by members of the South Australian community, including the consumers relevant to this claim.
Removal of asbestos
The removal of asbestos from buildings is regulated by the WHS Act and the WHS Regs. SafeWork SA is the regulator responsible for administering this legislative scheme and Pfeffer, being the Manager of the construction and utilities team, has a particular focus on the building industry’s compliance. Relevantly, SafeWork SA has developed Codes of Practice for the management and control of asbestos in workplaces pursuant to s 274 of the WHS Act.[32]
[32] The applicable Code of Practice in 2016 was How to Manage and Control Asbestos in the Workplace and How to Safely Remove Asbestos 2011.
The WHS Regs contain a general prohibition on carrying out work involving asbestos, except where the work is for its removal and that removal is authorised.[33] Chapter 8 of the WHS Regs regulates the removal of asbestos. Relevantly, a person may not, either personally or, in the course of conducting a business or undertaking, direct a worker to carry out the removal from a workplace (which would include a demolition worksite)[34] of more than 10 square metres of non‑friable asbestos or asbestos-containing material unless they hold a relevant licence issued by SafeWork SA.[35] In the case of friable asbestos, a person must hold a Class A licence. In the case of non-friable asbestos, the licence required is either a Class A or a Class B licence. Friable asbestos is formed from a slurry of powdered asbestos which is mixed with water applied primarily as an insulating material which becomes very brittle when it has dried. It was generally not used in the construction of domestic dwellings.
[33] See reg 419(1) and the exception at reg 419(3).
[34] The definition of workplace in the WHS Act is expansive and would include a demolition worksite. See WHS Act s 8. The definition of workplace in the WHS Act also applies in the WHS Regs: Legislation Interpretation Act 2021 (SA) s 14.
[35] It is an offence under Chapter 8, Part 10 of the WHS Regs, see s 487(1) WHS Regs.
In the present case, Goros held a Class B asbestos removal licence until it was suspended from 4 April 2016 and cancelled on 3 June 2016. The effect is that from 4 April 2016, Goros was not authorised to remove friable asbestos or more than 10 square metres of non-friable asbestos or asbestos containing material from any worksite.
There are also practical safety measures which must be undertaken by a licenced asbestos removalist which include:
·The wearing of personal protective equipment;
·The use of techniques to eliminate or minimise the generation of asbestos fibres so far as is reasonably practicable;
·The erection of signs to alert people that asbestos is being removed and barricades to delineate the removal area;
·Notification to SafeWork SA at least five business days prior to undertaking asbestos removal work; and
·Where the removal is occurring at residential premises, the licensed removalist must notify anyone occupying premises in the immediate vicinity and ensure that signs and barricades are erected.

According to Pfeffer, on occasions where asbestos is discovered in the footings of a house, it is not necessary to treat the entire foundations as asbestos waste if the asbestos material can be removed and safely disposed. It would not typically be necessary to dispose of all of the foundations as asbestos because this would increase cost and create unnecessary landfill. It would only be necessary to dispose of an entire foundation of a house as asbestos if the asbestos is distributed throughout the concrete. Pfeffer had never heard of asbestos being found dispensed in that way in South Australia.
Transport and disposal of asbestos
Whereas the removal of asbestos is regulated by SafeWork SA and the WHS Act, the transport and disposal of asbestos waste is regulated by the EPA pursuant to the EP Act. Shillabeer is a Senior Investigations Officer in the Waste Levy Branch of the EPA whose work is focussed on the waste industry’s compliance with regulations, including those relevant to asbestos transport and disposal.
Shillabeer explains that asbestos is classified as ‘listed waste’ under Schedule 2 of the EP Act. As a result, its transport and disposal are ‘prescribed activities of environmental significance’[36] and it is an offence to transport asbestos waste except as authorised under Part 6 of the EP Act.[37] Likewise, any facility that acts as a ‘depot for the reception, storage, treatment or disposal’ of asbestos must be so authorised under Part 6 of the EP Act.[38] The EPA is the authority who can issue licences under Part 6.[39] The EPA can also impose conditions on that licence.[40]
[36] EP Act, Sch 1, cl 3(3) and (5).
[37] Ibid, s 36.
[38] Ibid.
[39] Ibid, s 40.
[40] Ibid, s 45.
In addition to any licence conditions, transporters and receivers of asbestos waste must comply with the Environment Protection (Movement of Controlled Waste) Policy 2014 (SA) (the EP Policy).[41] The EP Policy says that where controlled waste (including asbestos[42]) is disposed of, a Waste Transfer Certificate (WTC) must be completed.[43] The WTC contains three sections: the first section must be completed by the producer of the waste (usually the demolition company licensed by SafeWork SA to remove asbestos waste), the second section must be completed by the EPA licensed transporter who transfers it to the waste facility, and the third section is completed by the EPA licenced facility which receives the waste. The WTC can be completed in hardcopy (on quintuplicate coloured forms) or online via the EPA’s electronic portal. Whether completed in hardcopy or online, the completed WTC must be received by the EPA.[44] The record of the WTC is then stored in the EPA’s database called ‘Waste Tracker’.
[41] An environmental protection policy developed pursuant to Part 5 of the EP Act.
[42] See cl 2 and Sch 1 of the EP Policy.
[43] The content of the WTC is prescribed by the EP Policy, Sch 3. There is one section for the transporter to complete and another section for the receiving facility.
[44] EP Policy, cl 8.
The EPA’s practice of monitoring the movement of controlled waste has been in place since 1998, as has the practice of completing WTCs.[45] In his affidavit, Shillabeer notes that there has been ‘regular and consistent compliance with the WTC system by producers of waste, transporters and waste management facility operators’ alike. Particularly in respect of waste facilities, in Shillabeer’s experience, those entities will not receive asbestos waste without a WTC.
[45] Since the introduction of the National Environment Protection (Movement of Controlled Waste Between States and Territories) Measure 1998.
Shillabeer confirms that Goros held an EPA licence (no. 29962) which authorised him to commercially transport waste (for fee or reward), including the transport of listed and controlled wastes, such as asbestos. As a condition on that licence, any asbestos transported by Goros had to be loaded, transported and unloaded in a manner which ensured the minimum release of asbestos fibres and thereby limits human exposure to those fibres. This requires the adoption of the minimum requirements imposed by the WHS Act and WHS Regs, including the use of heavy-duty packaging around asbestos-contaminated waste. Where there is a large volume of waste, such that it is not practical to wrap it individually, the truck or trailer transporting the waste must be lined with heavy duty plastic and then sealed with the sheeting prior to transport.
Turning to waste depots, Shillabeer deposes that, in practice, there are only a small number of facilities in South Australia which are authorised under the EP Act to receive asbestos waste. There two types of waste facilities: waste transfer facilities and landfills. Waste transfer facilities are simply storage and processing facilities before the waste is ultimately transferred to landfill. A waste transfer facility cannot process asbestos waste and can only store small amounts before it is transferred to landfill. Large quantities of asbestos or asbestos contaminated materials (such as a truckload or more) would have to be deposited directly to a landfill facility licenced to receive asbestos waste.
According to Shillabeer, in 2016 there were only six landfill facilities that were authorised and capable of receiving truckloads of asbestos waste which he summarised in a table in his affidavit and which has been transcribed below:

Authorisation Holder EPA Licence Address

Acquista Investments Pty Ltd, Veolia Environmental Services

(Australia) Pty Ltd
11275 Port Wakefield Road, LOWER LIGHT SA 5501

Waste Management Pacific (S.A.) Pty Limited 14463 Inkerman Road, INKERMAN SA 5550

Southern Waste ResourceCo Pty
Ltd 32682 Tatachilla Road, MCLAREN VALE SA 5171

Waste Management Pacific (S.A.) Pty Limited 14471 Sturt Road Sturt Road, NURIOOTPA SA 5355

Adelaide Hills Recycling Pty Ltd 15056 307 Hillside Road, STRATHALBYN SA 5255

Fleurieu Regional Waste Authority (Alexandrina Council, City of Victor Harbor, District Council of Yankalilla and Kangaroo Island Council) 346 Victor Harbor-Goolwa Road, GOOOLWA SA 5214

To Shillabeer’s knowledge, most demolition companies undertaking demolitions in metropolitan Adelaide would dispose of waste to either the Inkerman or Lower Light (commonly referred to as ‘Dublin’ due to its proximity to the town of that name) if working in the northern part of the city, the McLaren Vale facility if working in the southern suburbs or the Strathalbyn facility if working in the Adelaide Hills.
Shillabeer deposes that from his searches of EPA systems and within his own knowledge, neither Goros nor any company or trading name associated with Goros has ever held an EPA authorisation to operate a waste facility. This includes the ‘The Wingfield Property Investment Trust’ and its trading name ‘Dublin Asbestos Waste Facility’ from which Goros purportedly issued waste receipts in respect of the Nazari Demolition.
Asbestos disposal findings
It is the primary case of the Commissioner that no asbestos was found in the any of the demolitions. To establish this case, the Commissioner relies, in part, on evidence which shows that:
1.Goros never disposed of demolition waste at a facility licenced to receive asbestos waste.
2.There were no WTCs for the transport of any asbestos waste in relation to the work performed for the consumer.
3.Goros never incurred additional disposal fees for the disposing of asbestos or asbestos contaminated waste at a facility licensed to accept asbestos waste.
4.Goros, or his drivers, disposed of the waste exclusively at ResourceCo facilities without identifying any asbestos or asbestos contaminated material to the facility.
5.Workers of the facilities inspected but did not discover any asbestos demolition waste received from Goros.
Therefore, for this part, the Commissioner invites the Court to make findings about what has occurred at the disposal stage. The Commissioner relies on evidence relevant to disposal, including receipts and other documents. However, the Commissioner relies on the detailed affidavit evidence before the Court, including that from:
·Ms Chloe Canning (Canning), Manager of the Enforcement Operations section of Consumer and Business Services (CBS).
·Mr Leon March (March), ICT Administrator at ResourceCo Pty Ltd.
Disposal evidence
Canning is the Manager of the Enforcement Operations section of the South Australian Office for Consumer and Business Services. She is an authorised officer under s 76 of the FTA. In March 2017, she undertook an investigation into Goros and associated entities after concerns were raised with her office by the EPA.
As an authorised officer, Canning has powers to compel a person to answer questions and produce documents pursuant to a request under s 77 of the FTA (s 77 notice). As part of her investigation into Goros, she issued s 77 notices on a number of entities seeking documents and information about Goros and associated entities.[46] These included financial institutions with whom Goros and his companies held accounts and credit cards.[47]
[46] These were Hindmarsh Demolition, John Gorcilov, John Goras (sic), Demolition Services Pty Ltd, Demolition Experts Pty Ltd and Australian Civil Earthmovers Pty Ltd.
[47] Bank SA for bank statements relating to Lamborghini Pty Ltd and DE. Westpac Bank for statements relating to Goros’ credit card.
Canning also issued s 77 notices on various landfill facilities for all invoices for waste disposal issued to Goros and associated entities between 1 January 2016 and 31 December 2016. These landfill facilities correspond with those identified as facilities authorised and able to accept large quantities of asbestos waste as identified by Shillabeer and set out in [70] above. The responses to the notices were as follows:
1.Fleurieu Regional Waste Authority (Goolwa): notice issued on 6 March 2018, and response dated 8 March 2018 to the effect that they had no relevant records.
2.Cleanaway (operating the Nuriootpa and Inkerman landfill facilities[48]): notice issued on 6 March 2018 with a response dated 3 April 2018 to the effect that they had no relevant records.
[48] Referred to by Shillabeer as ‘Waste Management Pacific (S.A.) Pty Limited’.
3.Southern Waste ResourceCo: notice issued on 6 March 2018 with a response on 4 April 2018 to the effect that there were a number of accounts for Hindmarsh Demolition at both their Lonsdale and McLaren Vale facilities and a spreadsheet was attached.[49] By subsequent email, it was confirmed by the Southern Waste ResourceCo that none of those transactions involved the dumping of asbestos or asbestos contaminated waste.
[49] Further discussion about this spreadsheet occurs below at [87].
4.Adelaide Hills Recycling: notice issued on 5 April 2018 with a response dated 16 April 2018 to the effect that there were no relevant records.
5.Integrated Waste Services in Lower Light (IWS):[50] notice issued on 2 July 2018 with a response dated 6 September 2018 with a number of invoices to Hindmarsh Demolition attached. These recorded disposals as follows:
[50] Business name of the partnership referred to by Shillabeer as ‘Acquista Investments Pty Ltd, Veolia Environmental Services (Australia) Pty Ltd’.
a.     17 February 2016: non-friable asbestos waste (1.22 tonnes) - $254.98 (GST incl)
b.     30 March 2016: non-friable asbestos waste (6.04 tonnes) - $1,262.36 (GST incl)
c.     29 April 2016: non-friable asbestos waste (1.12 tonnes) - $271.04 (GST incl)
d.     13 July 2016: ‘C&D Mix Waste Tonne’ (2 tonnes) - $198.00 (GST incl)
e.     15 August 2016: non-friable asbestos waste (1.76 tonnes) - $377.52 (GST incl)
f.      22 August 2016: non-friable asbestos waste (1.66 tonnes) - $356.07 (GST incl)
g.     10 October 2016: non-friable asbestos waste (1.6 tonnes) - $288.64 (GST incl)
h.     9 November 2016: non-friable asbestos waste (3.26 tonnes) - $588.10 (GST incl)
i.      6 January 2017: non-friable asbestos waste (5.76 tonnes) - $1,039.10 (GST incl)
j.      12 January 2017: non-friable asbestos waste (0.62 tonnes) - $114.40 (GST incl)
None of the above disposals of asbestos occurred within the period in which demolition work was performed for each of the consumers or within six days of the completion of that work. Most of the disposals occurred before or significantly more than six days after the completion of the work for each consumer.
Ms Canning also issued a s 77 on Agon Environmental Services on 2 July 2018 but they had no records relevant to this claim.
As shown above, there were only two waste facilities that held any records relevant to the respondents. The first being the Southern Waste ResourceCo facilities (ResourceCo) and the IWS facility.
Relevant to the ResourceCo facilities, March’s affidavit provides further context in respect of ResourceCo’s records and procedures. March is employed at ResourceCo Pty Ltd as the ICT Administrator responsible for the administration of the IT systems and includes the operating systems (called Microsoft Dynamics Nav) used to record and monitor incoming waste and resources into all of ResourceCo’s facilities in SA. March has also been employed as a weighbridge operator at ResourceCo where his role was to inspect truckloads of waste upon arrival at the depots. Accordingly, he is very familiar with the processes and documentation required upon the dumping of waste.
According to March, in 2016 – 2017, ResourceCo operated a total of seven resource recovery and landfill facilities including facilities at Wingfield,[51] Lonsdale, McLaren Vale[52] and Hartley. There are two facilities at Wingfield, one being a regular waste facility and the other (called the Suez-ResourceCo facility) is a specialised ‘alternative fuels facility’ which takes waste and transforms it into processed engineered fuel for use by other companies as a substitute for coal or gas. In 2016, McLaren Vale was the only ResourceCo facility licenced to receive asbestos waste.[53]
[51] There are two facilities in Wingfield. One at 144-150 Wingfield Road North, Wingfield and the Suez-ResourceCo Alternative Fuels Pty Ltd, being a waste to energy plant at 85 Wilkins Road Wingfield which operated on a day-to-day basis by Suez Australia.
[52] Called ‘Southern Waste ResourceCo McLaren Vale’.
[53] This is consistent with Shillabeer evidence at paragraph [70].
March explains that there are standard operating procedures adopted across all of the ResourceCo facilities in respect of receiving waste.[54] Upon a truck entering a ResourceCo site to deposit waste, it is met by ResourceCo weighbridge operator. The truck’s load is weighed, and the driver must identify the contents of their load. The weighbridge operator then uses an elevated platform to undertake a visual inspection of the load to verify its contents. Upon satisfaction of the weighbridge operator, the truck will enter the facility and the driver will deposit the load as directed by ResourceCo staff. A secondary visual inspection is then undertaken by two ResourceCo staff: a traffic control officer who will visually inspect the pile while an excavator operator will, using their machinery, separate the load further allowing for a more thorough inspection by the officer on foot.
[54] Although March was rostered largely at the Wingfield sites and there may be some slight variations site-to-site, he believes that a similar process is adopted across the organisation.
All ResourceCo employees who undertake visual inspections are trained to identify asbestos by sight. According to March it is possible, although unlikely that asbestos could be concealed and not identified by ResourceCo staff. March deposed:
It is possible that small amounts of asbestos could be hidden in truckloads of waste and not seen on a visual inspection, though as set out above the waste deposited is subsequently sorted and recycled where possible such that any asbestos would be identified. In the event that an entire truckload of waste is contaminated with asbestos then it would be seen on a visual inspection by ResourceCo staff as, if the entire truckload is contaminated, it would likely be seen by both the weighbridge operator when inspecting the load and when the deposited material is subsequently inspected. Where loads contain asbestos it is necessary for waste transport certificates, as required by the EPA to be completed.
If asbestos is identified in the course of these inspections, the driver is directed to remove the waste from the site and deposit it at a facility licensed to receive asbestos waste. If no asbestos or other dangerous waste is identified on inspection, the truck will be weighed again at the exit and the driver will be charged according to the weight of the net load in tonnes.
Prior to departure, a ‘weighbridge ticket’[55] is issued to the driver which records the date, the transporter’s details, the ‘qty UOM’ (the net weight in tonnes) the type of waste received and the suburb from which the waste originates (the weighbridge tickets). ResourceCo uses codes to designate the type of waste and records this on the weighbridge tickets as follows:
·‘C&D Waste’ or Construction and Demolition waste comprises heavy loads of timber, concrete, bricks, rubble, metal, plastics, cardboard or paper.
·Clean Concrete A waste comprises slab, paving, kerb and channel with less than 5% contamination with other materials and must be free from asbestos.
·Clean Concrete B comprises slab, paving, kerb and channel with less than 5% contamination from bricks or dirt.
·Unclean Concrete comprises concrete mixed with over 5% of bricks, rubble and small amounts of soil and minor contamination of plastic, timber or organic materials. It must be free from asbestos.
[55] Prior to 1 May 2016, ‘weighbridge tickets’ were also called ‘receiving notes’.
March has undertaken searches of ResourceCo’s operating systems and obtained the weighbridge tickets provided to Hindmarsh Demolition in 2016. He also produced a summary spreadsheet of those weighbridge tickets in response to Canning’s s 77 notice issued to ResourceCo for the period between 7 June 2016 and 19 December 2016. March observes that all waste received from Hindmarsh Demolition in 2016 at ResourceCo facilities was deposited at the Lonsdale or one of the two Wingfield facilities. None of those facilities were licensed to accept asbestos waste. Further, the records held by Resource do not record that any of the Hindmarsh Demolition’s drivers disclosed, or that ResourceCo workers identified on inspection, any asbestos in the materials which were dumped.
If asbestos were deposited, a WTC ought to have been produced and submitted to the EPA. According to Shillabeer, who undertook searches of a database maintained by the EPA called ‘Waste Tracker’ there are 31 entries for Goros between 1 January 2016 and April 2019. In terms of WTC’s in 2016 that relate to asbestos materials that have been produced by Hindmarsh Demolition, the following WTC’s are contained in the EPA database:
1.WasteTracker Certificate 5T00126668 for the disposal of 1.22 tonnes of non-friable asbestos waste on 17 February 2016;
2.WasteTracker Certificate 5T00126667 for the disposal of 6,040 kg of non-friable asbestos waste on 30 March 2016;
3.WasteTracker Certificate 5T00125988 for the disposal of 1.12 tonnes of non-friable asbestos waste on 29 April 2016;
4.WasteTracker Certificate 5T00127046 for the disposal of 1.76 tonnes of non-friable asbestos waste on 15 August 2016;
5.Waste Tracker Certificate 5T00144514 for the disposal of 1.66 tonnes of non-friable asbestos waste on 22 August 2016;
6.WasteTracker Certificate 5T00144513 for the disposal of 1.60 tonnes of non-friable asbestos waste on 10 October 2016;
7.WasteTracker Certificate 5T00144512 for the disposal of 3.26 tonnes of non-friable asbestos waste on 9 November 2016; and
8.WasteTracker Certificate 5T00144511 for the disposal of 5.76 tonnes of non-friable asbestos waste on 6 January 2017.

The Hindmarsh Demolition business operated from the site (consisting of a yard, a warehouse and an office) at 78 Grand Junction Road in Rosewater (the Rosewater Depot). Consumers Ji, Wayne Penna and the Nazaris attended at the Rosewater Depot in the course of their engagement with the business. It was also within the knowledge of the SafeWork SA and EPA witnesses that this was the place of business for Hindmarsh Demolition and in fact, was the site where Shillabeer carried out his investigation in January 2017. Various witnesses recalled seeing vehicles parked at the Depot bearing the logo ‘Hindmarsh Demolition’. Finally, this is where Parkinson would start each day of work.
I further find that, although the business of Hindmarsh Demolition was not formally registered with ASIC, Mr Goros and DE traded jointly as Hindmarsh Demolition (the Hindmarsh Demolition business) and together operated it as a single business. I so find based on:
·the admission in the defence filed in this action (noting that as the sole director and shareholder Goros had authority to bind DE);
·the use of both the DE and Lamborghini Pty Ltd bank account to receive payments;
·the fact that invoices and communications sent to the consumers were not always on DE letterhead;
·the licensing of Mr Goros alone under the EP Act, the Building Work Contractor’s Act and by SafeWork SA.
I also make that finding on the evidence of Pfeffer and Shillabeer in their respective capacities as regulators. I rely too on the evidence of each of the consumers, that they had dealt with a business known as Hindmarsh Demolition, which was run by Goros. In each case, they largely, if not exclusively, dealt with Goros in all phone calls, site visits and email exchanges and in all pricing negotiations. Goros also directly followed up payments and engaged in further contact with consumers. In each demolition, the invoices and quotations provided to the consumers by Goros contained a letterhead with an image of a truck which had ‘Hindmarsh Demolition’ displayed down its side.
Goros conducted the day-to-day demolition work both personally (including by operating machinery) and by directing labourers to do so. This included Parkinson who worked for Goros from around October 2015 to March 2016. Parkinson also knew of two other employed labourers during that period known as ‘Malik’ and Borg. Parkinson understood that Goros’ business, in which he was employed, to be called Hindmarsh Demolition. In the course of that employment, Parkinson, as with other employees, was under the control and direction of Goros.
Parkinson’s evidence and the evidence of the consumers,[75] combined with the ResourceCo dumping receipts,[76] provides the picture of the day-to-day operations of Hindmarsh Demolition under the control of Goros. The Commissioner’s closing submissions summarise those operations and I adopt that summary as follows:
·The house would be knocked down using an excavator. That created the typical construction and demolition waste from a house, being bricks, wood, insulation, pipes and plumbing, and concrete;
·Once the bulk of the house was down, Goros had two semi-trailers into which the construction and demolition waste was loaded. Goros employed truck drivers who would drive back and forth from the house to the dump. Often Goros drove one of the semi-trailers himself, always driving the white semi-trailer which had a red trailer with ‘Hindmarsh Demolition’ painted on the side. Sometimes both trucks would be running back and forth from a demolition to the waste disposal facility, and on other times only one; and
·Parkinson’s job, with Malik and/or Borg, was to fill up the trucks as quickly as possible when they arrived so that the trucks could return to the waste disposal facility and then back to the demolition site over the course of the demolition. Parkinson gave evidence that Goros would often demand that Parkinson work quicker loading the trailer. Depending on the location in Adelaide, a truck would be gone for about 45 minutes while dumping waste.
·Goros would then, either in his capacity as employee or director of DE, issue an invoice to the consumers on either Hindmarsh Demolition or DE letterhead, but in either case, bearing the imagine of the red semi-trailer with ‘Hindmarsh Demolition’ down the side for payment to DE or Lamborghini Pty Ltd.
[75] For example, see Truss, Masters and Ahmed evidence.
[76] See paragraph [87] below and Annexure A.
I am satisfied that the above accurately describes the way in which Goros operated the Hindmarsh Demolitions business on his own behalf and for DE on a day-to-day basis.
For completeness, I give no weight to the evidence that ‘Hindmarsh Demolition’ is the registered trading name of a partnership held by a person called Donka Kocovski in Richmond, South Australia. This does not displace the strong evidence supporting the position that Goros used the name ‘Hindmarsh Demolition’ in the course of operating business for or on behalf of DE regardless of its registration with ASIC or any other authority. In any event, the Court has no other information before it about the relevance of this information and Goros has not assisted the Court in that regard.
The asbestos findings
As set out above, in each case, a representation was made by Goros that asbestos, or additional asbestos, had been discovered in the footings (in the case of Berry, Ho, Ji, Penna, Masters and Nazari demolitions), driveway (Cvorkov demolition) and roof (Ahmed demolition), and that this discovery requires specialist removal, transport and disposal in accordance with the relevant regulations.
In the case of the Berry demolition, I accept the evidence of Parkinson that there was asbestos in the eaves of the Berry house and that this was placed in the front living room, covered by a curtain and then upon commencement of the demolition, it was mixed in with the rubble. However, this asbestos (being visible at the time of the quote) was incorporated into the standard invoice terms.
The Berry asbestos representation subject to this claim related to additional asbestos apparently discovered in the foundations of the house. Parkinson gave positive evidence, which I accept, that there was no additional asbestos found in the footings of the Campbelltown property. In the absence of any evidence to the contrary by Goros, and relying also on the disposal findings[77] that no large volume of asbestos was dumped at any facility licensed to receive asbestos waste, I find that there was no asbestos discovered on site in the course of the Berry demolition. It follows that the asbestos representation made by Goros to Mr Berry was false.
[77] Paragraphs [91]-[94] above.
I follow the same reasoning with respect to the Cvorkov demolition. In particular, I rely on the evidence of SafeWork SA staff (Icolaro and Pfeffer) that there were no notices issued to Goros in respect of the Cvorkov demolition and that there was no asbestos found on site by Icolaro after. Similar to the Berry demolition, I view this as positive evidence as to the absence of asbestos. Mr Goros’ email to SafeWork SA is an admission to that effect. Mr Goros’ false statement to Mr Cvorkov that SafeWork SA inspectors had found asbestos and shutdown the site also evidences a consciousness of the falsity of his claim such as to be in the nature of an admission that there was no asbestos found in the ground.
I would also find that there was no asbestos found or removed from the Nazari demolition site. I do so on the basis of the false statement made by Goros to the effect, that there had been no receipt of the waste charged by the Dublin Asbestos Waste Facility which was not licensed to accept asbestos or any waste, and was nothing more than a business name registered by a company he controlled for the receipt of the general waste. That false statement evidences a consciousness of guilt, in the sense that, absent any explanation for the false claim, it is an admission that there was no asbestos waste taken from the Nazari demolition. I also rely on the threats made to persuade the Nazaris to make the payments he claimed to draw an inference that he knew that he was not entitled to the amounts claimed. The threats have all the hallmarks of a fraudster.
In respect of the other demolitions, the Commissioner submits that in each case, there is striking similarity between the circumstances in which asbestos is apparently discovered. In the Commissioner’s submission, the evidence adduced with respect to each individual consumer is logically probative to the findings sought with respect to the seven other consumers and therefore cross-admissible, noting that the usual prejudice that is of concern in criminal proceedings does not arise in these proceedings.[78] Further, the Commissioner contends that the evidence reveals a pattern of behaviour by Goros to deceive consumers into paying for the removal, transport and disposal of asbestos contaminated material which was not there and for which Goros never incurred additional disposal fees.[79] In particular, the Commissioner says that the Court can reasonably find that there was no additional asbestos in the case of all consumers, on the strength of the positive evidence in the case of the Berry and Cvorkov demolitions that no such material was present.
[78] Sheldon v Sun Alliance Australia Limited (1989) 53 SASR 97, 144-148 (Bollen J) citing Martin v Osborne (1936) 55 CLR 367, 376 at [697] (Dixon J); Grivas v Brookes (1997) 69 SASR 532 at 546-548 (Matheson J, Doyle CJ and Bleby J agreeing).
[79] See generally Grivas v Brookes (1997) 69 SASR 532, 536 (Doyle CJ).
Similar fact reasoning is most commonly associated with criminal law proceedings where strict safeguards have been established to prevent the admissibility of such evidence. This is reflective of the Court’s concern to protect the interests of an accused person. However, there is authority that those limitations do not apply to matters outside of the criminal context.
An early authority is the High Court decision of Martin v Osborne.[80] This was a ‘quasi-criminal’ appeal from the Victorian Supreme Court in which the defendant was alleged to have breached a provision of the Transport Regulation Act 1933 (Vic) by operating a commercial passenger vehicle without a relevant licence. On 1 November 1935, police stopped him while he was operating a vehicle called the ‘Hupmobile’ transporting passengers, for fee and without a licence, between various places in regional Victoria. It was controversial between the parties whether evidence as to the defendant’s practice in the two days prior, during which he had apparently been conducting the same scheme, was relevant and admissible in respect of the charge from 1 November 1935. The majority judgment, delivered by Dixon J (with Latham CJ agreeing), found that such evidence was admissible because it was relevant to the issues in dispute, namely, whether the defendant was operating a commercial transport service for fee. The Court found that this was circumstantial evidence which tended to exclude as unreasonable any other hypothesis for what occurred on 1 November 1985. In his reasons, Dixon J said:[81]
The repetition of acts or occurrences is often the very thing which makes it probable that they are accompanied by some further fact. The frequency with which a set of circumstances recurs or the regularity with which a course of conduct is pursued may exclude, as unreasonable, any other explanation or hypothesis than the truth of the fact to be proved. For example, the probability that the neglected condition of a barber's implements was the cause of his customer contracting barber's itch becomes much higher when it appears that about the same time two more of his habitual customers also contracted the disease (Hales v. Kerr). If four close relatives of a woman, dwelling in her house and eating meals prepared by her, die of arsenical poisoning one after another within a few months, the inference that she wilfully administered the poison has more support than if one death only occurred in such circumstances (R. v. Geering). The discovery of a number of dead bodies of infants buried in the ground at different premises lately occupied by a baby farmer greatly increases the probability of her having murdered an infant entrusted to her charge which has disappeared (R. v. Makin; R. v. Knorr). An inference from circumstances that on a specific occasion an act of adultery or of incest took place between a man and a woman may be uncertain until it appears that a previous sexual relationship existed between them, but the addition of that fact may remove doubt (R. v. Ball; McConville v. Bayley; R. v. Goldsworthy). For a medical man or midwife frequently to procure abortion makes it unlikely that his or her proved association with a specific case of abortion was not criminal (R. v. Bond; R. v. Graham). The repetition by an accounting party of the same error or kind of error in calculating at excessive amounts the totals of his disbursements makes it probable that the overstatement was fraudulent (R. v. Richardson; cf. R. v. Proud; R. v. Garsed; R. v. Hiddilston; Hardgrave v. The King; R. v. Finlayson). In the same way repeated utterings of coins or notes in fact counterfeit or forged, and repeated obtainings of money by representations in fact untrue increase the probability that on a specific occasion a coin was uttered or a pretence made with guilty knowledge and intent (R. v. Whiley; R. v. Forster; R. v. Weeks; R. v. Francis).
(footnotes omitted)
[80] (1936) 55 CLR 367.
[81] Ibid, 376-377 (Dixon J).
This reasoning of Dixon J and Evatt J in Osborne has been assumed into modern case law.[82]
[82] Cross on Evidence (9^th ed, 2013) [21290] p 729.
In the Full Court decision of the Supreme Court of South Australia (White, Bollen and Prior JJ) in Sheldon v Sun Alliance Australia Limited,[83] Mrs Sheldon’s property had been severely damaged by fire in 1985, and the respondent insurer had refused her fire damage claim on the basis of fraud. The insurer advanced what was termed a ‘conspiracy defence’ alleging that Mrs Sheldon, along with her husband, operated a scheme of intentionally burning down properties owned by them to claim on their home insurance policies. Evidence relied upon related to fires at the same property in 1980 and earlier fires at residential and commercial properties in the UK previously owned by Mr and Mrs Sheldon. The purpose of such a defence was to demonstrate that the 1985 fire was part of a sinister practice to defraud their insurers. This not only went to heart of the issues in dispute but it also tended to generally discredit Mr and Mrs Sheldon as witnesses. The question before the Full Court (as it then was) was whether the ‘strikingly similar’ facts of each of the fires was admissible in the proceedings. The Court found, following Martin v Osborne that the evidence was logically probative of a fact in issue between the parties because it rendered improbable that there was any innocent explanation for the 1985 fire and allowed the Court to make their findings against the Sheldons with ‘more confidence’.[84]
[83] (1989) 53 SASR 97.
[84] Ibid, 104.
White J adopted the statement of Dixon J in Martin v Osborne that evidence of ‘similar facts’ is admissible where the facts include ‘circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed’.[85]
[85] Martin v Osborne, 375 as cited in Sheldon, 145-146.
In light of my findings above in respect of the Berry and Cvorkov demolitions that there was no additional asbestos found on site, the Commissioner invites the Court to adopt similar fact reasoning to find that there was an absence of asbestos at the other demolitions. The repetition of those circumstances excludes as improbable any explanation or hypothesis other than that there was no asbestos contrary to the statements made by Goros in all but the Penna demolition. As to the Penna demolition I cannot find that asbestos was not used to box up the foundation. However, I find that the asbestos had not contaminated the rubble to the extent asserted, by Goros.[86] The explanation he gave that the walls disturbed the asbestos when they fell on the footing is unlikely and inconsistent with what he said to, and showed Neville Penna when he first raised the issue.
[86] See the example in Martin v Osborne (1936) 55 CLR 367, 376 (Dixon J).
I am persuaded by these submissions. When considering the eight consumer experiences as a whole, there is clear and striking similarity in the pattern of conduct by Goros. After quoting for and commencing a demolition job, Goros would tell the consumer that he has discovered asbestos in circumstances which fall outside of the terms of the contract and that it has become mixed in with the large volume of demolition rubble. It is this discovery that is the springboard for the further representations as to service and cost. These similarities are more consistent with a fraudulent scheme, than the discovery of asbestos contamination. I refer in particular to the following conduct:
·the call at short notice to meet on site;
·the superficial descriptions and evidence of quantities of asbestos and alternative removal and disposal strategies; and
·in no case was separation of the asbestos from the other waste a viable alternative.
When looked at cumulatively, the improbability that Goros should come across so many instances of the unusual occurrence of asbestos being used in footings and concrete paving, which was incapable of separating and resulted in the dumping of so many truckloads of asbestos contaminated waste without any trace or record is overwhelmingly improbable. The series of similar circumstances, render the falsity of the asbestos representation in each case most probable.
When viewed together with the evidence which showed that Goros made false statements to Berry, Cvorkov and the Nazaris the evidence also discloses that he was practicing a fraudulent scheme.
There is other circumstantial evidence that the scheme was fraudulent.
First, based on the evidence of Pfeffer, asbestos is only occasionally found in the footings of older properties but that this is unlikely to generate a truckload (or more) of contaminated waste that has to be disposed of as asbestos. Pfeffer has never heard of such a volume being disposed of in his experience in South Australia making it even more improbable that this might occur to someone like Goros, not once, but eight times in a calendar year.
Secondly, the way in which Goros raised the worrying prospect of fines, delays and costs to overcome scepticism expressed by consumers is indicative of a fraudulent scheme. The implication in his statements was that as expensive as his additional costs were, if the consumers challenged him, the costs of meeting EPA regulations would be higher. His implication was that he would not do work that might otherwise have been required by the EPA. In the Ahmed demolition this strategy was raised to a higher level by asking Ahmed to keep his voice down, either to add to the sense of crisis or to avoid the risk of a neighbour calling in the EPA which might discover that there was no asbestos.
Thirdly, the failure of any consumer to notice his workers take special measures provides evidence that there was no asbestos. Moreover, if there were asbestos contamination those special measures would have entailed additional costs to Goros that he never claimed.
In circumstances where he has failed to give any evidence in the proceedings, I am prepared to make the inference unfavourable to Goros and DE based on the above similar fact reasoning. Goros would clearly have been in a position to put forward evidence as to the existence or otherwise of asbestos had he not availed himself of the opportunity to do so. In the circumstances, I find that in respect of each demolition (other than the Penna demolition) there was no asbestos present. In respect of the Penna demolition, I find that such asbestos as there may have been was not of a quantity and mixed to the extent that it required the removal of truckloads of waste. In particular in this case, the alternative hypothesis that the demolition waste was substantially contaminated with asbestos but nonetheless dangerously and improperly removed and disposed of, putting many at risk, is improbable. In the absence of an admission to that effect by Goros, the inference could not be drawn.

The asbestos representations in each case did more than merely confuse the consumers. The representations induced them into agreeing, at extra cost, to services which they did not need. Put simply, Goros lied for his own advantage. This was in circumstances where Goros was purported to have expertise in asbestos identification and removal and the consumers were not able to make an appropriate assessment themselves, and further, were placed under pressure to make a quick decision.[87] For the reasons above, I am satisfied that in respect of each of the consumers, Goros has engaged in misleading and deceptive for the purposes of s 18 of the ACL by falsely representing that asbestos existed each of the demolition sites and that this triggered the need for specialised removal services. For the same reasons, I am satisfied that he has contravened ss 29(b) and (l) of the ACL.
[87] Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592.
Service and cost representation findings
I am also satisfied that there was no, or in the Penna demolition, an unsubstantial amount, of asbestos on site. Therefore there was no need for the quantities of waste to be removed, transported and disposed of in the way represented by Goros. It follows that Goros had no reasonable basis on which to say that the service and cost representations were required.
Taking into account the evidentiary aid in s 4 of the ACL, I am satisfied therefore, that Goros has breached ss 29(b), (i) and (l) of the ACL by making false and misleading representations that particular services and costs were required after the discovery of asbestos, but no such asbestos was discovered. This conduct was also misleading and deceptive for the purposes of s 18 of the ACL.
Goros had no reasonable basis on which to make those representations in circumstances where there was no asbestos on site and he has not adduced any evidence to satisfy me otherwise.
Unconscionability
As above, the Commissioner says that the conduct of Goros towards each of the consumers was, in all the circumstances, unconscionable within the meaning of s 21 of the ACL. Such misconduct is revealed both generally and when each of the factors in ss 22(1)(a), (d), (e) and (l) of the ACL are considered. The Commissioner invites the Court to find that each episode, as a whole reveals, that Goros engaged in dishonesty, predation, exploitation, sharp practice, unfairness of a significant order, a lack of good faith, and the exercise of economic power in a manner worthy of criticism.
The consideration of this issue commences with the findings just made that the conduct of Goros blatantly breached the provisions of ss 18 and 29(1) of the ACL. Given the degree to which his conduct departs from the standards expected by society, little more is required to constitute a breach of s 21 of the ACL.
I find that, Goros ran a scheme which included making intentional representations to consumers about asbestos, service and costs which were untrue and designed to create a sense of crisis. Goros then exploited their belief in his expertise and their limited capacity to obtain alternative advice for his own windfall financial gain. I acknowledge that none of the consumers suffered from a pre-existing vulnerability or special disadvantage in commercial dealings of this kind. Nonetheless the conduct of Goros is so reprehensible and sits so far apart from the standards expected in commercial relationships, and the situational disadvantage so acute that it meets the necessary test for unconscionability for the purposes s 21 of the ACL as established in Kobelt and subsequent decisions (some of which are discussed above).
The knowledge imbalance between the parties resulted in gross inequality of bargaining power. Goros was, in each case, considered to be the expert in respect of asbestos identification and management. The consumers by comparison did not have those skills, or they were not in a position to make their own assessment, and in any event, they had no reason not to believe what they were being told. Goros controlled the state of the site at the time he called the consumers to attend. His control made independent verification difficult, if not impossible. The representations made were calculated by Goros to sit outside the standard invoice terms, which were terms imposed by Goros himself. The consumers were in a poor position to make any assessment of the extent of the asbestos contamination themselves as the representations were made at such a time or in such a way that prevented them from attending the site to check what they had been told.
The fear of the health effect of exposure to asbestos and the worry about the costs and other consequences of remediating asbestos contamination are salient features of the context in which Goros acted.
Goros also tactically applied undue pressure to obtain the agreement of the consumers and to secure additional payments from them. His false statements about the presence of asbestos at each demolition and the need for specialised removal and disposal services were clearly designed to deceive consumers, and deter them from independently verifying his representations.
He also incited fear around the danger of asbestos and the costs of its remediation to encourage a quick transfer of monies into his business accounts.
Goros’ behaviour was designed to leave each consumer in a position where they could agree to the additional fees for removal of asbestos contaminated material or suffer delays to partially completed work towards which they had already committed substantial funds.
Goros also acted knowing that it would be difficult for consumers to seek out alternative services because the houses were already demolished at the time of the representations. Further, in the case of Ji, who wanted to obtain a further opinion, he became aggressive and applied pressure.
In addition to those factors, I have had regard to following further circumstances with respect to the individual consumers:
·Taking advantage of the consumer’s inability to attend the site to verify whether there was asbestos in situ due to being interstate: Berry.
·Not allowing the consumer to assess the ‘discovered asbestos’ by stating that it had already been removed from the site: Cvorkov.
·Relying on the consumer’s tight timeframes to insist that they make immediate additional payment or the work would cease: Cvorkov, Ho.
·Creating a heightened sense of danger around asbestos to force the consumer to make a quick decision: Ji.
·Insisting on immediate payment and threatening further cost if not paid: Ji.
·General aggressive and dismissive behaviour towards the consumer: Ji.
·Discouragement of any third party inspection of the site for asbestos: Ji.
·Delaying in the provision of receipts and other documents when requested: Penna.
·Failing to provide a clearance certificate upon request: Penna.
·Telling the consumers not to alert the neighbours as to what was going on: Ahmed.
·Telling consumers that they would be fined by the council if the asbestos was not removed immediately: Ahmed.
·Threatening legal proceedings, including the lodgement of a caveat over property if payment was not made: Nazari.
·Producing false waste receipts from the ‘Dublin Asbestos Waste Facility’ which was a business name associated with Goros and not a licensed waste facility: Nazari.
·Being evasive and/or aggressive in response to correspondence seeking return of monies after the discovery that no asbestos was found on site: Cvorkov.
Looking at the conduct as a whole, it is clear that in each and every case, Goros has deviated from the standard of commercial conduct expected by society. Goros’ representations were designed to mislead and trick consumers. He did more than merely confuse, he positively induced the consumers through varied tactics, including pressure and threats to pay him additional monies[88] for the removal and disposal of asbestos which was not there. As set out above, he took advantage of the consumers in a variety of ways and exploited the trust that they had in him as the apparent expert in the control of asbestos material. Goros has acted in bad faith with a view to gain advantage for himself. I find that in each case, his conduct is unconscionable for the purposes of ss 21 and 22 of the ACL.
[88] It is noted that in the case of the Nazaris that they refused to pay the additional monies.
Wrongly accepting payment
In each case (save for the Nazaris who refused to make payment) in light of the disposal findings and my findings above as to the false and misleading representations made by Goros, he has wrongly accepted payment for services (namely, the lawful removal, transport and disposal of asbestos material) that were not rendered, and which he never intended to render. The additional payments were received after the demolition work had been completed and therefore Goros could never have intended to deposit the waste as asbestos contaminated waste.
For those reasons, I find that with respect to all consumers (save for the Nazaris) he has acted in contravention of ss 36(1) and (4) of the ACL. However, because of the degree of overlap between those provisions I make findings of a contravention of s 36(1) of the ACL alone.
Liability of the second respondent
No distinction can be drawn by Goros and DE in the conduct of the business of Hindmarsh Demolition.
I make a declaration that the second respondent was a party to the same contraventions. The penalties to be imposed will be considered in due course.
Orders
I make the orders sought by the Commissioner as follows:
1.The Court declares that in 2016 the first respondent, John Goros and the second respondent DE, in trade and commerce in relation to the conduct of a demolition business called Hindmarsh Demolition:
a.     engaged in conduct that was misleading and deceptive, and likely to mislead and deceive, in contravention of s 18(1) of the Australian Consumer Law (SA) in relation to the removal, transport and disposal of asbestos contaminated material;
b.     made false and misleading representations as to the need to remove asbestos and asbestos contaminated material from properties owned by the consumers set out in paragraph [18] of my reasons in contravention of s 29(1)(l) of the Australian Consumer Law (SA);
c.     made false and misleading representations as to the price of demolition services and the removal of construction and demolition waste from the consumers’ properties in contravention of s 29(1)(i) of the Australian Consumer Law (SA) in representing that additional costs were to be incurred in dumping the general construction and demolition waste as asbestos contaminated material when no such costs were incurred by the first respondent;
d.     made false and misleading representations as to the standard, quality and grade of construction and demolition waste removal, transport and disposal services in contravention of s 29(1)(b) of the Australian Consumer Law (SA) in representing that such services would be conducted in accordance with relevant legal requirements for the removal, transport and disposal of asbestos contaminated material when such requirements were not met;
e.     wrongly accepted payment from the consumers, other than the Nazaris, set out in [18] of my reasons for the lawful removal, transport and disposal of asbestos contaminated material when the respondents had no intention to provide such services, in contravention of s 36(1) of the Australian Consumer Law (SA);
f.      engaged in unconscionable conduct in contravention of s 21 of the of the Australian Consumer Law (SA) by the aforementioned breaches of the ACL (SA) and by the First Respondent exploiting his position and bargaining power with respect to the consumers, using undue pressure and tactics, not acting in good faith and otherwise engaging in conduct which is against society’s norms of good conscience.
I will hear the parties as to penalties and costs.

Consumers	Address	Demolition Date range
Michael Berry	1 Mines Road, Campbelltown	20 January 2016 – 9 February 2016
Alex and Adriana Cvorkov	40 Saint Georges Terrace, Glandore	Prior to 5 February 2016 – 10 February 2016
Lien Ho	15 Romilly Avenue, Manningham	4 May 2016 – 14 May 2016
Hui Ji (Jackie)	2 Whelan Avenue, Camden Park	23 May 2016 – 27 May 2016
Neville Penna	2 Nunyah Avenue, Park Holme	19 September 2016 – 29 September 2016
Brett Masters	23 Fairford Terrace, Semaphore Park	21 November 2016 – 23 November 2016
Dr Sheeper Ahmed	14 Hammond Road, Findon	Late November 2016 – early December 2016
Shay and Reza Nazari (the Nazaris)	10 Mayfield Street, Modbury Heights	6 December 2016 – 12 December 2016

Authorisation Holder	EPA Licence	Address
Acquista Investments Pty Ltd, Veolia Environmental Services (Australia) Pty Ltd	11275	Port Wakefield Road, LOWER LIGHT SA 5501
Waste Management Pacific (S.A.) Pty Limited	14463	Inkerman Road, INKERMAN SA 5550
Southern Waste ResourceCo Pty Ltd	32682	Tatachilla Road, MCLAREN VALE SA 5171
Waste Management Pacific (S.A.) Pty Limited	14471	Sturt Road Sturt Road, NURIOOTPA SA 5355
Adelaide Hills Recycling Pty Ltd	15056	307 Hillside Road, STRATHALBYN SA 5255
Fleurieu Regional Waste Authority (Alexandrina Council, City of Victor Harbor, District Council of Yankalilla and Kangaroo Island Council)	346	Victor Harbor-Goolwa Road, GOOOLWA SA 5214

[2022] SASC 107

23 September 2022