Commissioner for Consumer Affairs v Koutropoulos
[2018] SASC 79
•15 June 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
COMMISSIONER FOR CONSUMER AFFAIRS v KOUTROPOULOS & ANOR
[2018] SASC 79
Judgment of The Honourable Justice Stanley
15 June 2018
TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - ENFORCEMENT AND REMEDIES - PENALTY - PRINCIPLES OF ASSESSMENT - CONSUMER PROTECTION CONTRAVENTIONS
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 - ENFORCEMENT AND REMEDIES - PENALTY
The defendants admitted to 18 contraventions of sections 18(1), 29(1)(m) and 36(4) of the Australian Consumer Law (ACL) in connection with the provision of international travel services.
The plaintiff sought penalties and other orders by way of relief.
Held:
1. Declaration made that the defendants contravened the ACL on 18 occasions by engaging in misleading and deceptive conduct, making false and misleading representations, and wrongly accepting payment.
2. Injunction granted restraining the defendants from making false representations and wrongly accepting payment in connection with the provision of travel services.
3. Defendants ordered to pay compensation to specific consumers named in the judgment, and to any other consumers who are assessed by Consumer and Business Services as having been adversely affected.
4. Pecuniary penalties of $50,000 in relation to the first defendant and $100,000 in relation to the second defendant imposed.
Supreme Court Act 1935 (SA) s 31; Fair Trading Act 1987 (SA) s 13, s 14; Competition and Consumer Act 2010 (Cth) Schedule 2; Australian Consumer Law 18(1), 29(1)(m), 36(4); Supreme Court Civil Rules 2006 (SA) r 225(2), referred to.
Australian Securities and Investments Commission v West (2008) 100 SASR 496; JN Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432; Australian Securities and Investments Commission v West [2008] SASC 111; Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd [2004] FCA 693; Rural Press Ltd & Ors v Australian Competition and Consumer Commission & Ors (2003) 203 ALR 217; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; Australian Competition and Consumer Commission v Woolworths Ltd [2016] FCA 44; Trade Practices Commission v CSR Ltd [1990] FCA 762; Australian Competition and Consumer Commission v Multimedia International Services Pty Ltd (2016) 243 FCR 392; Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247; Australian Competition and Consumer Commission v Safety Compliance Pty Ltd (in liq) (No 2) [2015] FCA 1469; Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; Australian Securities and Investment Commission v Kobelt [2017] FCA 387; Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 2) [2012] FCA 535, applied.
Director of Consumer Affairs Victoria v Gibson (No 3) [2017] FCA 1148; Commissioner for Consumer Affairs v Lukeleo Pty Ltd [2017] SASC 168, discussed.
COMMISSIONER FOR CONSUMER AFFAIRS v KOUTROPOULOS & ANOR
[2018] SASC 79Civil
STANLEY J: In this matter, the Court must consider what penalties, if any, and other orders by way of relief, should be imposed for various contraventions of the Australian Consumer Law (ACL).
The first defendant, Vasilios Koutropoulos, and the second defendant, Mary Boufkas, have admitted the allegations pleaded against them by the Commissioner for Consumer Affairs in his Second Statement of Claim filed 17 August 2016 (Second Statement of Claim). Those allegations are that, between January 2015 and May 2016, in the course of jointly operating a travel agency, the defendants engaged in misleading or deceptive conduct, made false or misleading representations about contractual rights and wrongly accepted payment in connection with international travel services, comprising 18 contraventions of the ACL which affected some 16 consumers. In addition, both defendants formally admitted contravening sections 18(1), 29(1)(m) and 36(4) of the ACL.[1] Those admissions were made in open court, and involved the defendants admitting liability (including direct involvement in the pleaded contraventions) and the assertions contained in the plaintiff’s Notice to Admit filed 23 February 2017.
[1] Being the “Australian Consumer Law Text” applicable in South Australia by virtue of ss 13 and 14 of the Fair Trading Act 1987 (SA), and comprising Schedule 2 to the Competition and Consumer Act 2010 (Cth).
On 24 December 2015, by consent, a judge of this Court ordered interim injunctive relief against both defendants. That relief prescribed the manner in which the defendants could continue to provide travel agency services and required the defendants to pay nominated amounts to six affected consumers by close of business on 4 January 2016, as well as to supply international airline tickets by close of business on the same date to two affected consumers.
Given the defendants have since admitted the allegations against them, the sole outstanding issue is the final relief and penalty that flows from those events. The plaintiff seeks relief in the nature of declarations, pecuniary penalties, compensation orders, injunctions, consumer redress and costs.
Further relevant background
The defendants jointly operated a travel agency, Olympia Express Tourist and Travel Office (Olympia), at Morphett Street, Adelaide. Its services included arranging international airline travel, travel insurance, accommodation and tours for consumers, and accepting payments from, and supplying tickets to, consumers for such travel, insurance, accommodation and tours (travel services).
It was not in issue that the first defendant was the registered holder of Olympia’s business name. He was regularly present at Olympia’s premises during trading hours. He answered telephone calls regarding actual or potential travel arrangements, spoke to consumers in relation to the same at Olympia’s premises, and discussed with, and issued directions to, the second defendant concerning the provision of services. The second defendant, his daughter, was an employee of Olympia and was responsible for the day to day running of its business. She arranged travel services for consumers, and accepted payment and issued tickets and bookings to consumers for those travel services. Whilst the extent of each defendant’s involvement was put on various alternative bases in the Second Statement of Claim, they admitted liability on the basis contained in the Notice to Admit.
Consumers affected
In Part One of the Second Statement of Claim, the 16 consumers who engaged Olympia’s travel services, the subject of the 18 contraventions, are identified as follows:
4.The following consumers purchased or purportedly purchased international airline travel, and / or in some instances related travel services, through Olympia Travel:
4.1 Nickolas Kollis (“Mr Kollis”) for the purchase or purported purchase of return tickets for six persons on international airline flights between Adelaide and Athens, Greece departing on 21 July 2015 and arriving back on 26 August 2015 (“Mr Kollis’ Purchased Flights”). In particular, the purchase or purported purchase included tickets for six persons on Emirates Flight No. EK106 scheduled to depart Athens on 26 August 2015 (“Mr Kollis’ Purchased Return Flights”);
4.2 Effie Kiziridis (“Ms Kiziridis”) for the purchase or purported purchase of return tickets for two persons on international airline flights between Adelaide and Thessaloniki, Greece departing on 8 September 2015 and arriving back on 8 October 2015 (“Ms Kiziridis’ Purchased Flights”). In particular, the purchase or purported purchase included tickets for two persons on Singapore Airlines Flight No. SQ278 scheduled to depart Adelaide on 8 September 2015 (“Ms Kiziridis Purchased Departing Flights”);
4.3 George Giakoumis (“Mr Giakoumis”) for the purchase or purported purchase of return tickets for two persons on Virgin Australia and Qatar Airways flights between Adelaide and Athens, Greece, departing on 24 April 2016 and returning on 7 July 2016 (“Mr Giakoumis Purchased Flights”);
4.4 Athena Karanastasis (“Ms Karanastasis”) for the purchase or purported purchase of:
4.4.1return tickets for two persons on Singapore Airlines flights from Adelaide to Athens (via Istanbul) departing on 30 August 2015 and returning to Adelaide on 30 September 2015 (“Ms Karanastasis’ Purchased Flights”). In particular, the purchase or purported purchase included tickets for two persons on Singapore Airlines Flight No. SQ391 scheduled to depart Istanbul on 28 September and Singapore Airlines Flight No SQ279 schedule to depart Singapore on 29 September 2015 (“Ms Karanastasis’ Purchased Return Flights”); and
4.4.2 hotel accommodation for two people in Paros, Greece (“Ms Karanastasis’ Purchased Accommodation”);
4.5 Konstantinos Dimopoulos (“Mr Dimopoulos”) for the purchase or purported purchase of return tickets for two persons on Emirates Airlines flights from Adelaide to Athens (via Dubai) departing on 17 August 2015 and returning to Adelaide on 14 October 2015 (“Mr Dimopoulos’ Purchased Flights”). In particular the purchase or purported purchase included tickets for two persons on Emirates Airline Flight No. EK106 departing Athens on 13 October 2015 and Emirates Airline Flight No. EK440 departing Dubai on 14 October 2015 (“Mr Dimopoulos’ Purchased Return Flights”);
4.6 Saadea Abood (“Ms Saadea Abood”) for the purchase or purported purchase of return tickets for five persons on the following international airline flights:
4.6.1between Australia and Najif Iraq (via Perth and Doha, Qatar) departing Adelaide on Flight No. QF595 on 22 November 2015 (“Ms Saadea Abood’s Purchased Departing Flights”);
4.6.2between Najif Iraq and Dubai, UAE (via Doha, Qatar) departing Najif on Flight No. QR457 on 17 January 2016; and
4.6.3between Dubai, UAE and Adelaide (via Doha and Hong Kong) departing Dubai on Flight No. QR1031 on 22 January 2016;
The flights referred to at paragraphs 4.6.2 and 4.6.3 of Part 1 above are “Ms Saadea Abood’s Purchased Return Flights”. Collectively, all the flights referred to at paragraph 4.6 of Part 1 above are “Ms Saadea Abood’s Purchased Flights";
4.7 Hefa Abood (“Ms Hefa Abood”) for the purchase or purported purchase of return tickets for four persons on international airlines flights as follows:
4.7.1between Australia and Najif Iraq (via Perth and Doha, Qatar) departing Adelaide on Flight No. QF595 on 22 November 2015 (“Ms Hefah Abood’s Purchased Departing Flights”);
4.7.2 between Najif Iraq and Dubai, UAE (via Doha, Qatar) departing Najif on Flight No. QR457 on 17 January 2016; and
4.7.3between Dubai, UAE and Adelaide (via Doha and Hong Kong) departing Dubai on Flight No. QR1031 on 22 January 2016.
The flights referred to at paragraphs 4.7.2 and 4.7.3 of Part 1 above are “Ms Hefah Abood’s Purchased Return Flights”. Collectively, all flights referred to at paragraph 4.7 of Part 1 above are “Ms Hefah Abood’s Purchased Flights”;
4.8 Ramzeyah Al Saeedy (“Mrs Al Saeedy”) for the purchase or purported purchase of return tickets for her husband Mr Majed Hassan Sadek Al Rammahy on Qatar Airways flights between Adelaide and Iraq departing on 21 November 2015 (“Mrs Al Saeedy’s Purchased Flights”);
4.9 Anastasia Maretis (“Ms Maretis”) for the purchase or purported purchase of return tickets for one person on Emirates Airlines flights between Adelaide and Greece departing July 2015 (“Ms Maretis’ Initial Purchased Flights”). Subsequently, Ms Maretis rescheduled those flights to depart in July 2016 (“Ms Maretis’ Postponed Purchased Flights”);
4.10 Angeliki Kotsonis (“Ms Kotsonis”) for the purchase or purported purchase of travel insurance for two persons in relation to a trip to China between 28 August 2015 and 4 September 2015 (“Ms Kotsonis’ Purchased Insurance”);
4.11 Fanoula Moutsokapas (“Mrs Moutsokapas”) for the purchase or purported purchase of return tickets for three persons on Qatar Airways flights between Adelaide and Greece departing Adelaide on 4 May 2016 (“Mrs Moutsokapas’ Purchased Flights”);
4.12 Ammar Ateya Twice Al Ghizee (“Mr Al Ghizee”) for the purchase or purported purchase of tickets for two persons on Emirates Airlines flights between Adelaide and Basrah, Iraq as follows:
4.12.1a departing flight for one person leaving Adelaide on 12 March 2016; and
4.12.2a return flight for two people flying from Basrah, Iraq on 25 April 2016 (“Mr Al Ghizee’s Purchased Flights”);
4.13 Nicoletta Alexia Kourlis (“Ms Kourlis”) for the purchase or purported purchase of return tickets for two persons on international airline flights between Adelaide and Cape Town departing Adelaide on or about 11 April 2016 (“Ms Kourlis’ Purchased Flights”);
4.14 Ann Nikari (“Mrs Nikari”) for the purchase or purported purchase of return tickets, amongst other travel purchased, for one person on Emirates Airline flights from Athens to Adelaide (via Dubai) departing Athens on Emirates Flight No. EK106 on or around 2 June 2016 (“Mrs Nikari’s Purchased Flights”). At all materials time [sic] Mrs Nikari’s sister, Mrs Maria Kambanos (“Mrs Kambanos”), acted as Mrs Nikari’s agent in booking and arranging Mrs Nikari’s Purchased Flights;
4.15 Kathy Economos (“Mrs Economos”) for the purchase or purported purchase of tickets for two persons on various airlines and associated travel bookings as follows:
4.15.1flights from Adelaide to London departing 6 May 2016;
4.15.2a flight between Paris and Barcelona departing 20 May 2016;
4.15.3a flight between Barcelona and Rome departing 25 May 2016;
4.15.4a flight between Rome and Adelaide (via Singapore) departing 5 June 2016;
4.15.5tickets for two people on the Eurostar high speed railway service between the United Kingdom and France in May 2016;
4.15.6airport transfers between the relevant airports and hotels in the following cities: London, Paris and Barcelona;
4.15.7a tour of Italy commencing on or around 25 May 2016; and
4.15.8accommodation in conjunction with the above travel (collectively “Mrs Economos’ Purchased Flights, Tour and Accommodation”); and
4.16 Athanasia Nikitas (“Mrs Nikitas”) for the purchase or purported purchase of return tickets for one person on international return airline flights between Adelaide and Athens, Greece. The specific itinerary for those flights was to be arranged by Olympia Travel but due to the conduct of Olympia Travel was not arranged (“Mrs Nikitas’ Future Flights”). At all material time [sic] Mrs Nikitas [sic] daughter, Mrs Helen Favretto (“Mrs Favretto”) acted as Mrs Nikitas’ agent in booking and arranging Mrs Nikitas’ Purchased Flights.
The material facts informing the bases of the causes of action in relation to each consumer are set out in further detail at paragraphs [18] to [34] below. The impugned conduct of the defendants can be summarised as follows:
i.Accepting payment from consumers for airline tickets, accommodation and travel insurance and failing to thereafter effect payment to the relevant third parties for those tickets.
ii.Failing to effect payment to a tour operator for a tour using credit owing to a consumer in circumstances where it was agreed that credit owing would be applied for that purpose.
iii.Representing to various consumers that airline tickets, accommodation, travel insurance and tours had been purchased and confirmed in circumstances where they had not.
iv.Failing to provide a consumer with airline tickets that had been purchased by and confirmed with the consumer.
v.Issuing tickets for flights in lieu of the flights actually promised, in circumstances where the substitutive tickets departed later than the departure dates of the flights actually promised.
vi.Failing to refund in full the total paid by a consumer for flights in circumstances where the tickets had not been purchased and it was agreed a full refund would be provided due to the consumer’s illness.
vii.Representing to a consumer that a printed flight itinerary constituted tickets for airline travel in circumstances where it did not.
viii.Failing to honour a credit owing to a consumer within the 12 month period during which the consumer had a contractual right to use the credit owing.
The plaintiff submits that the 18 contraventions can be divided into three categories according to seriousness. I am satisfied it is appropriate to adopt those categories. They are:
i.Category A: Contraventions remedied prior to the date of travel.
ii.Category B: Contraventions not remedied until the day of, or after, the date of travel.
iii.Category C: Contraventions that occurred after 24 December 2015 (the date on which a judge of this Court ordered interim injunctive relief).
For reasons that will become plain, the plaintiff categorises Mr Giakoumis, Ms Maretis, Mrs Economos and Mrs Nikitas as falling within Category A; Mr Kollis, Ms Kiziridis, Ms Karanastasis, Mr Dimopoulos, Ms Saadea Abood, Ms Hefah Abood, Mrs Al Saeedy and Mrs Kotsonis as falling within Category B; and the two further contraventions against Ms Saadea Abood and Ms Hefah Abood as falling within Category C, as do the contraventions against Mrs Moutsokapas, Mr Al Ghizee, Ms Kourlis and Mrs Nikari. I also observe that Mr Kollis, Ms Karanastasis, Mr Dimopoulos, Ms Saadea Abood and Ms Hefah Abood were already overseas at the time of the contraventions relating to them.
In relation to Category C, I do not accept the second defendant’s submission that Olympia was kept open to consumers following the orders of 24 December 2015 solely to enable consumer contact for the purpose of providing refunds. There is evidence of continued trading with new consumers following the making of those orders, such as the dealings with Mrs Moutsokapas, Mr Al Ghizee, Ms Kourlis and Mrs Nikari.
Further, the plaintiff has identified an additional six consumers in respect of whom it seeks relief, namely, Ms Ralia Hatzimihail, Ms Sui Ying, Ms Zunaira Qureshi, Dr Ashan Khurram, Mr Emanuel Protopapas and Mr William Nash. The additional six consumers are identified as “likely” having suffered loss or damage although no contraventions have been expressly pleaded against the defendants in relation to these consumers.
At the hearing before me the plaintiff tendered the Notice to Admit dated 23 February 2017 (Notice to Admit), as well as four affidavits, namely, the affidavit of Jeffrey Colin Betts affirmed 27 September 2017, the affidavit of Fanoula Moutsokapas sworn 28 April 2016, the affidavit of Maria Kambanos sworn 17 June 2016 and the affidavit of Erminia Kambanos sworn 17 June 2016. The affidavit of Erminia Kambanos was only partially admitted.
It is necessary to consider further the evidence in relation to each consumer in order to identify the nature of the admissions of liability and to assess the seriousness of the contravening conduct.
Evidence of the contraventions
On 6 April 2017, the second defendant stated in open court that she admits all the assertions contained in the Notice to Admit. The first defendant was ill on that occasion and therefore not fit to attend the hearing, but on 27 June 2017 he stated in open court through an interpreter that he also admits all the assertions contained in the Notice to Admit. Both defendants also admitted (i) to breaching sections 18(1), 29(1)(m) and 36(4) of the ACL; and (ii) that they were each personally directly involved in, knowingly concerned in, and a party to all of the contraventions of the ACL as pleaded in the Second Statement of Claim.
Section 18(1) of the ACL provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Section 29(1)(m) provides that a person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy. Section 36(4) concerns wrongly accepting payment. It requires a person who, in trade or commerce, accepts payment or other consideration for goods or services to supply those goods or services within the period specified by or on behalf of the consumer at or before the time payment was accepted or, if no period is specified, within a reasonable time.
While the second defendant asserted during the hearing on penalty before me that she admitted the assertions within the Notice to Admit not fully understanding the nature of the assertions, or the nature and significance of her admissions, I am nevertheless satisfied on the evidence before the Court that both the first and second defendants contravened those sections.
Mr Kollis – Category B
Late in June 2015, Mr Kollis’ daughter attended Olympia and arranged to purchase flights on his behalf. In a telephone conversation with Mr Kollis later that day, the second defendant confirmed Mr Kollis’ agreement to purchase flights through Olympia. In two transactions, Mr Kollis paid in full for the flights as agreed. He paid a total of $11,700. Olympia subsequently provided Mr Kollis with a flight itinerary. By 26 August 2015, neither the first nor second defendant had arranged or paid the airline for the return flights from Greece to Australia. The second defendant informed Mr Kollis while he and his travel companions were en route to the Athens International Airport that the return flights had not been booked and that he and his travel companions should return to their hotel pending alternative arrangements. Mr Kollis subsequently incurred an additional $3,250 for five days of accommodation and associated costs. Following a conciliation conference, the second defendant agreed to refund half the airfare and the full amount of the accommodation and associated costs, being a total of $10,175. That accommodation has now been paid by the defendants.
Ms Kiziridis – Category B
In August 2015, Ms Kiziridis attended Olympia and, following a discussion with the second defendant, agreed to purchase flights. She paid in full for the promised flights in two payments totaling $6,090. On 7 September 2015, the second defendant attended Ms Kiziridis’ home and purported to provide the tickets. On inquiry from Ms Kiziridis, the second defendant assured her that she and her travelling companion were ticketed the whole route to and from Greece and that she would depart the next day. It was only on the day of Ms Kiziridis’ inquiry that the second defendant attempted to pay the airline for the flights. Ms Kiziridis was due to depart the following day. On the day of her planned departure, Ms Kiziridis and her travel companion were unable to board their flight as the second defendant was not present at Adelaide Airport to verify her credit card details. Ms Kiziridis met the second defendant at Olympia the same day to rearrange her travel.
Mr Giakoumis – Category A
In November 2015 Mr Giakoumis attended Olympia and, following a discussion with the second defendant, agreed to purchase flights. He paid $3,200 to Olympia on 7 November 2015 and was provided an itinerary setting out his flight details and was informed his tickets would be available for collection in five days. By email dated 25 November 2015, the second defendant informed Mr Giakoumis his tickets would be available for collection the following week. On 2 December 2015, Mr Giakoumis emailed the second defendant to indicate he would stop in to collect his tickets the following day. Neither the first nor the second defendant arranged or paid for the flights. Mr Giakoumis subsequently discovered Olympia was under investigation and requested a refund. He arranged airfares through another agent at a higher cost. Following a conciliation conference, he was refunded $3,565 by the defendants.
Ms Karanastasis – Category B
Sometime before 24 January 2015, Ms Karanastasis agreed to purchase flights through Olympia, and in August 2015, also agreed to purchase accommodation. She transferred $3,740 for the flights around 27 January 2015, and a further $610 for accommodation on 29 July 2015. The latter payment was initially for flights for Ms Karanastasis’ daughter but was subsequently to be applied to accommodation. By email dated 26 August 2015, Olympia provided an itinerary setting out Ms Karanastasis’ flight details, and on 23 September 2015, the second defendant confirmed the flights had been booked. Around 28 September 2015, while Ms Karanastasis and her mother were in Istanbul, the second defendant attempted to pay the airline for her return flight but, as the second defendant was not present at the Istanbul International Airport to verify her credit card details Ms Karanastasis and her mother were not permitted to board the flight. Ms Karanastasis and her mother only learned the flights had not been confirmed at the airport desk and were occasioned significant distress and delay as a result, which I note was particularly burdensome for Ms Karanastasis’ elderly mother. Following a conciliation conference, she was refunded $2,570 for the flights and additional expenses incurred as a result of the delay.
Mr Dimopoulos – Category B
On 31 March 2015, Mr Dimopoulos attended Olympia and paid $3,480 by cheque for flights to Greece for himself and his wife. On 12 October 2015, the second defendant told Mr Dimopolous that his return flight from Greece was booked and he should attend the airport at 12.30pm the next day. When he arrived at Athens International Airport with his wife on 13 October 2015, he was advised by airline staff that there were no tickets booked under their names. He telephoned Olympia and the second defendant stated she would arrange alternative flights and incur the cost of overnight accommodation. When Mr Dimopolous and his wife returned to the airport the following day, the same situation unfolded. Mr Dimopolous then took it upon himself to arrange returning flights. Following a conciliation conference, he was refunded $5,825 by the defendants.
Ms Sadeea Abood and Ms Hefah Abood – Categories B and C
In September 2015, Ms Saadea Abood attended Olympia and agreed to purchase flights both for herself and on behalf of Ms Hefah Abood. On the same day she made payment in full of $7,700 for her own flights and also paid $5,100 in full payment of Ms Hefah Abood’s flights. She was told tickets for the flights would be emailed to her within three days and was provided two flight itineraries setting out the flight details.
On two occasions before 22 November 2015, Ms Hefah Abood attended Olympia and was informed by the second defendant in both instances that there were confirmed flight bookings. However, as at that date, Olympia had not arranged the flights nor paid the airlines for those flights. On 23 November 2015, Olympia issued tickets to each of Ms Saadea Abood and Ms Hefah Abood for flights from Australia to Iraq in lieu of those purchased, but did not issue tickets for the returning flights notwithstanding representations in flight itineraries that those had been confirmed. I note the itinerary concerning the return flights. On 24 December 2015, this Court ordered the defendants to supply the Aboods with their international airline tickets by close of business on 4 January 2016. On or about 11 January 2016, Olympia provided flight itineraries which represented that those returning flights had been confirmed. I note the itinerary concerning the return flights was marked with the false booking reference number “ABC123” which I consider aggravates the seriousness of the contraventions.
Olympia arranged alternative return flights, which departed at a later date, in lieu of those purchased. The Aboods were forced to incur additional hotel expenses in Dubai and to sell jewellry at an undervalue to do so. No compensation for the expenses incurred by the extended stay in Dubai has been made to either Ms Saadea Abood or Ms Hefah Abood.
Mrs Al Saeedy – Category B
Around 15 September 2015, Mrs Al Saeedy attended Olympia and agreed to purchase flights. She made payment in full of $1,850 that same day and was provided an itinerary setting out her flight details. On about 19 November 2015, the second defendant told Mrs Al Saeedy the tickets had been confirmed. However, as at 21 November 2015, payment for the flights had not been made, nor had Mrs Al Saeedy been provided a ticket. Following a conciliation conference, she was refunded $1,990 to cover the cost of alternative flights which she arranged.
Ms Maretis – Category A
In September 2014, Ms Maretis attended Olympia and, following a discussion with the second defendant, agreed to purchase flights. Late in the month she paid $1,835 to Olympia for the flights she had initially agreed to purchase. However, those flights were changed and Ms Maretis was informed by the first defendant that payment for the new flights had been made and by the second defendant that tickets would be ready for collection by 20 November 2015. As at 16 December 2015, the airline had not been paid for the new flights nor had Ms Maretis been provided her tickets. Following a conciliation conference, she was refunded $1,835 by the defendants.
Mrs Kotsonis – Category B
On or about 21 August 2015, Mrs Kotsonis agreed to purchase travel insurance through Olympia and made payment in full of $600 for an insurance policy, which Olympia never arranged. Whilst travelling, Mrs Kotsonis lost jewellery to the value of $2,905, of which $1,500 would have been covered by the insurance policy. Further, Mrs Kotsonis incurred expenses of $228 in rescheduling flights as a result of flight delays. Following a conciliation conference, she was refunded $2,328 by the defendants.
Mrs Moutsokapas – Category C
In January 2016, Mrs Moutsokapas attended Olympia with her husband and, following a discussion with the second defendant, agreed to purchase flights. On 14 January 2016, Mrs Moutsokapas paid $3,200 in cash at Olympia’s premises and, on 8 February 2016, paid a further $1,300 in cash which the second defendant collected at her home. She was given a flight itinerary by the second defendant who represented to her that the itinerary constituted her tickets. In the following weeks, Mrs Moutsokapas was prompted by a friend to call the airline to confirm the validity of her tickets, and was informed by the airline that the credit card holder would need to be present at the airport to confirm the tickets’ validity. She contacted Olympia and the second defendant assured her on multiple occasions that she would correct the issue prior to the date of departure. By 29 February 2016, Olympia had not arranged the flights nor paid the airline for the flights (using an appropriate payment method), and Mrs Moutsokapas had not been provided her tickets. On 29 February 2016, the second defendant provided Mrs Moutsokapas with a cash refund of $4,600. The additional $100 related to $80 owed to her as a result of baggage that ought to have been booked on a previous trip.
Mr Al Ghizee – Category C
On about 4 March 2016, Mr Al Ghizee attended Olympia and arranged to purchase flights, for which he made full payment. He was provided an itinerary containing the airline booking references “DEF234” and “DEF123”. However, Olympia did not subsequently arrange the flights nor pay the airline for those flights, or provide Mr Al Ghizee with tickets. In fact, the second defendant has admitted knowing that as at 4 March 2016, the relevant airline no longer permitted Olympia to arrange bookings through it.
Ms Kourlis – Category C
Around 11 February 2016, Ms Kourlis arranged to purchase flights through Olympia. On 16 February 2016, she paid for those flights in full by electronic funds transfer in the sum of $7,100. Ms Kourlis was provided an itinerary containing the airline booking reference “ABC123”, which the defendants admitted was not a genuine booking reference. By 19 February 2016, Olympia had not arranged the flights, paid the airline for the flights, or provided Ms Kourlis with her tickets. On the same date Ms Kourlis requested a refund in full. That has now been paid but it took nearly two years.
Mrs Nikari – Category C
On about 15 March 2016, Mrs Kambanos attended Olympia and arranged to purchase flights both for herself and on behalf of her sister, Mrs Nikari. The second defendant told Mrs Kambanos that she would receive Mrs Nikari’s tickets by 17 March 2016, and Mrs Kambanos paid $2,450 in full payment for Mrs Nikari’s flights. In late March 2016, the first defendant told Mrs Kambanos over the telephone that he had seen the tickets and on 1 April 2016, the second defendant informed Mrs Kambanos over the telephone that she had the tickets and would express post them to her. In the week of 11 April 2016, the second defendant provided Mrs Kambanos with a flight itinerary and told her that it was Mrs Nikari’s ticket. It was marked with the airline booking reference “ABC223” which the defendants have admitted to be a false reference number. By 2 June 2016, Olympia had not arranged Mrs Nikari’s flights, paid the airline for the flights or provided the tickets to Mrs Nikari or Mrs Kambanos. It was at the Athens International Airport when Mrs Kambanos and Mrs Nikari were arranging some travel for Mrs Nikari’s son that they were informed by the airline that there was no valid booking for Mrs Nikari. Mrs Kambanos then arranged alternative flights for Mrs Nikari at an approximate cost of $2,450. She has not received a refund from Olympia nor compensation for the alternative flights.
Mrs Economos – Category A
In late September 2015, Mrs Economos attended Olympia and arranged for Olympia to book flights, tour and accommodation for $16,560, using credit owing to her arising from previous travel purchased through Olympia and cancelled by Mrs Economos due to family illness. I have viewed email correspondence between Mrs Economos and the second defendant which clearly establishes that Olympia represented that it had confirmed travel services for Mrs Economos when in fact it had not. By 17 January 2016, there were no bookings for the flights, tour or accommodation as promised, nor had Mrs Economos been provided with any tickets or reservations. She arranged alternative flights, tour and accommodation which cost her an additional $1,920. While the defendants have refunded Mrs Economos the $16,560 initially paid, she has not been refunded the extra $1,920. The contraventions concerning Mrs Economos are flagrant as the booking number “ABC123” was inserted onto the itinerary forwarded by the second defendant in the knowledge it was not a genuine booking number.
Mrs Nikitas – Category A
In March 2015, Mrs Helen Favretto arranged for Olympia to purchase flights and travel insurance for herself and Mrs Nikitas. Mrs Favretto paid for those travel services in full after which Mrs Nikitas became ill. Mrs Favretto obtained a refund for herself and arranged for Olympia to retain Mrs Nikitas’ payment as she wished to postpone her travel until she recovered. Olympia informed Mrs Nikitas that she had 12 months to book her future flights. Between August 2015 and January 2016, Mrs Nikitas attempted to book those flights. She attempted to call Olympia multiple times during ordinary business hours and eventually attended Olympia’s premises in January 2016 and advised the first defendant of her desired travel dates. In January 2016, she called Olympia and the first defendant told her that the second defendant would ring her to confirm an itinerary. That never occurred. Olympia agreed to provide Mrs Nikitas a refund but has not done so.
Declaratory relief
The power to grant relief in the nature of declarations of right is found in s 31 of the Supreme Court Act 1935 (SA). It provides:
31-Declaratory orders
No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court shall have power to make binding declarations of right whether any consequential relief is or could be claimed or not.
The Court also has inherent jurisdiction to grant declaratory relief as a superior court.[2] In Australian Securities and Investments Commission v West,[3] Gray J acknowledged that the jurisdiction to grant declaratory relief is wide, citing with approval the reasons of King CJ in JN Taylor Holdings Ltd (in liq) v Bond, as follows:[4]
Authoritative judicial statements make it clear that the jurisdiction to grant declaratory relief is very wide and that judicial pronouncements appearing to restrict the circumstances in which such relief will be granted relate to the sound exercise of the discretion rather than to jurisdiction: Ibeneweka v Egbuna [1964] 1 WLR 219 at 225; Forster v Jododex Australia Pty Ltd esp per Gibbs J at 438; Salmar Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192 per Mason JA at 201. It is not necessary that the plaintiff have a cause of action against the defendant: Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536. A statement by Lord Sterndale MR in Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 at 507, quoted by Gibbs J in Forster v Jododex at 435, appeared to confine the otherwise unlimited character of the jurisdiction to cases involving “a question of defining the rights of two parties”. As was pointed out, however, by Street CJ in Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43 at 51, that statement was made “at a time when the declaratory jurisdiction had not achieved the full development manifested in the last 20 or 30 years”. By 1970 the Privy Council could say in Rediffusion (Hong Kong) Ltd v Attorney-General (Hong Kong) [1970] AC 1136 at 1158 that to exclude the jurisdiction it must appear “that the questions were purely abstract questions the answers to which were incapable of affecting any existing or future legal rights of the plaintiffs” [emphasis mine]. In Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation (supra), Street CJ (at 53) repudiated the notion of jurisdictional cut-off points in relation to declaratory relief. Moffitt P said (at 57):
The proper conclusion to be drawn concerning the power to make a declaration is that the jurisdiction (in the strict sense) to grant declaratory relief in a properly constituted action is very wide, so that no particular limitation can be pointed to …
The other member of the court, Hutley JA, considered that there are limits upon the power to make declarations. The limits which he articulated went no further than that a declaration must “be confined to those matters which have a real legal context, and to the determination of which the court's procedure is apt” (at 61) and that it must not be a declaration as to a purely abstract or theoretical question (at 62-63).
I can find no warrant for the imposition by the courts of a self-denying restriction on their jurisdiction to grant declaratory relief. In my opinion there is no jurisdictional limit. The court’s power to grant such relief is “only limited by its own discretion” (Hanson v Radcliffe at 507), and the boundaries of judicial power: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582.
[Footnotes omitted.]
[2] Australian Securities and Investments Commission v West [2008] SASC 111 at [201], (2008) 100 SASR 496 at 550.
[3] Australian Securities and Investments Commission v West [2008] SASC 111 at [202], (2008) 100 SASR 496 at 550-551.
[4] JN Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432 at 435-436.
As the plaintiff submits, declaratory relief is commonplace in civil penalty proceedings arising under the ACL. It serves the purpose of defining and publicising contravening conduct under the ACL and sets out clearly the foundation on which consequential orders may be made. As Lee J said in Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd:[5]
On one view it may be thought to be unnecessary that there be orders declaring contraventions of the Act to have occurred when substantive orders are made by way of injunction or the imposition of pecuniary penalties based on the findings of such contraventions set out in the accompanying reasons. On the foregoing view such declaratory orders serve no additional purpose. That point of view has been set out in detail, and the relevant authorities reviewed, by Gray J in Australian Competition and Consumer Commission v Francis [2004] FCA 487 (at [92]-[119]). (See also: Warramunda Village Inc v Pryde (2001) 105 FCR 437 at [8]; Commonwealth of Australia v Evans [2004] FCA 654 per Branson J at [57]-[61]; Warramunda Village Inc v Pryde (2002) 116 FCR 58 per Finkelstein J at [46], [64]-[80]).
However, on the other hand it may be said that there is some utility in declaring contraventions of the Act to have occurred in order to define and publicize the type of conduct that constitutes a contravention of the Act and to set out clearly the foundation on which the consequential orders by way of injunction and pecuniary penalty, including those based on accessorial liability, are grounded. (See: Rural Press Limited v Australian Competition and Consumer Commission (2003) 203 ALR 217 per Gummow, Hayne, Heydon JJ at [95]; RAIA Insurance Brokers Limited v FAI Insurance Co Limited (1993) 41 FCR 164 per Davies J at 167, Beaumont, Spender JJ at 175-178).
[5] [2004] FCA 693 at [20] to [21]; (2004) 207 ALR 329 at 333.
I consider it important in this case that declaratory relief is granted, given the serious and repeated nature of the contravening conduct. That is all the more so given the number of Category C contraventions that occurred following the making of the orders of this Court on 24 December 2015 restraining the defendants from, in short, contravening the ACL in their provision of travel services Those travel services post-dating the order were carried out in blatant disregard of its terms.
I am disposed to exercise my discretion to grant declaratory relief in the terms proposed by the plaintiff and appended to these reasons at Appendix A. As Gummow, Hayne and Heydon JJ made clear in Rural Press Ltd & Ors v Australian Competition and Consumer Commission & Ors, it is necessary to express through the content of declaratory orders the gist of the contravening conduct.[6] I am satisfied the form of these orders achieves that end.
[6] [2003] HCA 75 at [89]-[90], [95], (2003) 203 ALR 217 at 245-246.
I note that the declarations do not include the “likely” contraventions against the additional six consumers that have not been pleaded. In the circumstances, I decline to extend the orders sought, except with respect to compensation, as those contraventions have not been expressly pleaded and the basis on which I propose to impose penalties and grant relief is sufficient to effect the purpose of such orders in all the circumstances of this matter.
Pecuniary penalties
The second defendant does not oppose the imposition of a pecuniary penalty, however, she submits that it should be limited in quantum given her purported incapacity to repay.
By s 224(1) of the ACL, this Court is empowered to order the defendants to pay civil pecuniary penalties to the State. Section 224(1) provides:
224 Pecuniary penalties
(1) If a court is satisfied that a person:
(a) has contravened any of the following provisions:
(i) a provision of Part 2‑2 (which is about unconscionable conduct);
(ii) a provision of Part 3‑1 (which is about unfair practices);
(iii) section 66(2) (which is about display notices);
(iv) a provision (other than section 85) of Division 2 of Part 3‑2 (which is about unsolicited consumer agreements);
(v) a provision (other than section 96(2)) of Division 3 of Part 3‑2 (which is about lay‑by agreements);
(vi) section 100(1) or (3) or 101(3) or (4) (which are about proof of transactions and itemised bills);
(vii) section 102(2) or 103(2) (which are about prescribed requirements for warranties and repairers);
(viii) section 106(1), (2), (3) or (5), 107(1) or (2), 118(1), (2), (3) or (5), 119(1) or (2), 125(4), 127(1) or (2), 128(2) or (6), 131(1) or 132(1) (which are about safety of consumer goods and product related services);
(ix) section 136(1), (2) or (3) or 137(1) or (2) (which are about information standards);
(x) section 221(1) or 222(1) (which are about substantiation notices); or
(b) has attempted to contravene such a provision; or
(c) has aided, abetted, counselled or procured a person to contravene such a provision; or
(d) has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; or
(e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or
(f) has conspired with others to contravene such a provision;
the court may order the person to pay to the Commonwealth, State or Territory, as the case may be, such pecuniary penalty, in respect of each act or omission by the person to which this section applies, as the court determines to be appropriate.
The defendants’ contraventions against s 18 of the ACL fall outside the scope of s 224(1). Accordingly, the pecuniary penalties must be assessed only in relation to the admitted contraventions of ss 29(1)(m) and 36(4), which are within Part 3‑1 of the ACL.
Section 224(2) requires the Court to have regard to all relevant matters in determining the appropriate pecuniary penalty. It provides:
(2) In determining the appropriate pecuniary penalty, the court must have regard to all relevant matters including:
(a) the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; and
(b) the circumstances in which the act or omission took place; and
(c) whether the person has previously been found by a court in proceedings under Chapter 4 or this Part to have engaged in any similar conduct.
The primary factor relevant to determining penalty is deterrence. As French CJ, Crennan, Bell and Keane JJ said in Australian Competition and Consumer Commission v TPG Internet Pty Ltd:[7]
General and specific deterrence must play a primary role in assessing the appropriate penalty in cases of calculated contravention of legislation where commercial profit is the driver of the contravening conduct…
[7] Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54 at [65], (2013) 250 CLR 640 at 659.
In Australian Competition and Consumer Commission v Woolworths Ltd, Edelman J emphasised the importance of both general and specific deterrence and identified other factors commonly relevant to the enquiry under s 224. He said:[8]
[8] Australian Competition and Consumer Commission v Woolworths Ltd [2016] FCA 44 at [124] to [126].
Some of the commonly relevant matters other than those in (a) to (c) to which the Court must have regard if relevant were described by Perram J in Australian Competition and Consumer Commission v Singtel Optus Pty Ltd (No 4) [2011] FCA 761; (2011) 282 ALR 246, 250-251 [11] (a list which was referred to without objection on appeal: Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249, 258 [37] (the Court)):
(1) the size of the contravening company;
(2) the deliberateness of the contravention and the period over which it extended;
(3) whether the contravention arose out of the conduct of senior management of the contravener or at some lower level;
(4) whether the contravener has a corporate culture conducive to compliance with the Act (or the new Australian Competition and Consumer Law) as evidenced by educational programmes and disciplinary or other corrective measures in response to an acknowledged contravention;
(5) whether the contravener has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention;
(6) whether the contravener has engaged in similar conduct in the past;
(7) the financial position of the contravener; and
(8) whether the contravening conduct was systematic, deliberate or covert.
Underlying many of these factors is what numerous authorities describe as the principal object of deterrence in the award of civil penalties. Deterrence can be “specific” to the particular person who committed the contravention and also “general” to persons in the same or similar circumstances to the person being subjected to the pecuniary penalty.
A consideration of deterrence, general and specific, also means that the following factors will also commonly be relevant:
(9) the extent of contrition;
(10) whether the contravening company made a profit from the contraventions;
(11) the extent of the profit made by the contravening company; and
(12) whether the contravening company engaged in the conduct with an intention to profit from it.
He further described the process of determining a penalty under s 224 as akin to the criminal sentencing process, being a “process of assessing the relevant factors and synthesising a conclusion as to penalty where the parties have not agreed an appropriate penalty and the central purpose of the penalty is deterrence.”[9]
[9] Australian Competition and Consumer Commission v Woolworths Ltd [2016] FCA 44 at [130]-[131].
In determining the appropriate pecuniary penalty it is necessary to assess the facts and circumstances of this case relevant to the factors that underpin the exercise of the sentencing discretion.
Deterrence
As I have identified, deterrence is the primary factor in the process of determining a penalty under s 224(1) of the ACL. While the determination of an appropriate penalty is akin to the process of arriving at an appropriate sentence for a criminal offence, the purpose of the civil penalty regime is to impose a penalty sufficiently high as to deter further contraventions. The penalty excludes some of the factors relevant to sentencing in the criminal law such as considerations of retribution and rehabilitation.[10]
[10] Trade Practices Commission v CSR Ltd [1990] FCA 762 at 40; Australian Competition and Consumer Commission v Multimedia International Services Pty Ltd [2016] FCA 439 at [75], (2016) 243 FCR 392 at 407.
The plaintiff submits that specific deterrence is not particularly relevant in the case of the first defendant who has likely retired. However, the plaintiff submits that any pecuniary penalty ought to specifically deter the second defendant from further contraventions in business ventures and future employment. During the hearing before me, the second defendant submitted that she is in the process of finding employment but that she does not plan to return to the travel industry. I consider that specific deterrence has a role to play in determining the ultimate penalty as against the second defendant because she may return to the travel industry and, even if she does not, there is a risk she may be employed in other customer service roles which require the handling of money. A penalty must be fixed accordingly.
I take into account some factors that have already achieved the objective of specifically deterring the defendants: first, the ongoing and adverse publicity to which they have been subjected because of these proceedings; second, the damage to their standing within their local community; third, there is the stress on the second defendant’s relationship which she has described in her written submissions; and, fourth, there is the financial impact on the defendants caused by their own conduct.
The plaintiff submits that in fixing penalty in this matter the emphasis should be general deterrence. For the purpose of general deterrence, penalties must be set at a level which makes clear to others that the cost of contravening the ACL is not an acceptable cost of doing business.[11] The pecuniary penalty in this case must serve to warn against similar contravening behaviour within the broader travel industry, and indeed more generally.
[11] Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54 at [64], (2013) 250 CLR 640 at 659.
Nature and extent of the contravening acts
I have set out in some detail the nature of the contravening conduct. I consider the following factors are relevant:
i.That at least 16 consumers were affected financially and suffered the stress of having to make alternative travel arrangements, in some instances while already overseas, some in circumstances which also affected their travelling companions.
ii.That the contraventions spanned a period of approximately 13 months.
iii.That the defendants received money from consumers and purported to provide confirmed bookings and tickets for international travel arrangements in the knowledge that the relevant bookings were not, and would not be, confirmed.
iv.That the defendants knew the relevant travel bookings had not been arranged at the times they represented to consumers that the travel bookings had been made and confirmed.
v.That false booking references were misleadingly inserted into travel itineraries provided to consumers, indicating they were confirmed bookings when the defendants knew they were not.
vi.Misrepresentations were often repeated multiple times.
vii.That the contravening conduct continued to occur following the orders of this Court on 24 December 2015.
Consumer loss and damage
As has been identified, 16 consumers the subject of specifically pleaded contraventions each suffered loss as a result of the defendants’ actions. The amounts paid to Olympia by each consumer were not insignificant, ranging from $600 in the case of Mrs Kotsonis, to as much as $16,560 in the case of Mrs Economos. While most consumers have been refunded those amounts plus ancillary costs incurred as a result of those contraventions, that is not the case for all of them and, in any event, the uncertainty in not knowing whether they would receive a refund would have caused great stress.
Further, the fact that several consumers were affected while overseas should not be overlooked. Those consumers were effectively stranded in foreign countries and had no choice but to (i) rely on the second defendant’s assurances that she would book alternative flights; or (ii) find the funds to arrange alternative flights themselves. Those consumers also incurred additional food and accommodation expenses.
Previous contraventions of the ACL
There is no evidence that either of the defendants have previously been found by a court to have engaged in any similar conduct, so this factor has no role to play in fixing appropriate penalties in this proceeding.
Other relevant factors
Olympia was a small travel agency. There was no senior management per se as the defendants had total control of its business and operations. There were no measures in place to ensure compliance with the ACL, nor a culture of compliance. While the defendants, apparently contrite, wrote to the plaintiff by letter dated 29 October 2015 acknowledging that some errors had been made that year “due solely to some financial issues”, the contravening conduct continued after that time. This serves to aggravate the seriousness of the conduct.
No evidence is before the Court as to the actual financial position of either defendant. This is a factor to be taken into account, even with non-corporate defendants.[12] However, the second defendant in her late written submissions indicated that she was forced to sell her family home as a result of Olympia’s collapse. She now lives with her family in rental accommodation and submits that she has few assets aside from some personal belongings, furniture and effects. She is unemployed. In separate written submissions the first defendant indicated he is retired and living on a pension. He currently rents a flat. While it is evident that any pecuniary penalty would contribute to the financial hardship now faced by the defendants, the authorities support the proposition that the risk of bankruptcy should not prevent the imposition of a penalty, as otherwise the object of general deterrence would be undermined.[13]
[12] Director of Consumer Affairs Victoria v Gibson (No 3) [2017] FCA 1148 at [46] and [81]-[82].
[13] Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 at [11]; Australian Competition and Consumer Commission v Safety Compliance Pty Ltd (in liq) (No 2) [2015] FCA 1469 at [44].
Equally, while the second defendant asserts she now has diminished financial capacity to satisfy any pecuniary penalty, there is no evidence regarding the actual extent of the defendants’ income or assets. It would be pure speculation to infer one way or another that the defendants do, or do not, have capacity to satisfy any penalty the Court might impose. Accordingly, I treat this as a neutral factor in my consideration as to pecuniary penalty. In any event, any pecuniary penalty imposed can be subject to a payment plan (to which the plaintiff has indicated consent) which would ameliorate some of the financial burden on the defendants as a result of the imposition of a penalty, and bring home to the defendants the gravity of their offending over the life of the payment plan.
Finally, I take into account the varying degrees of cooperation exhibited by the defendants throughout the proceedings. As the plaintiff submits, some credit ought be given to the extensive admissions made by the defendants and their participation in multiple conciliation conferences. On the other hand, the admissions could have been made at the time of the filing of defences in May 2016. It is also notable that the first defendant failed to pay compensation within the timeframes agreed in conciliation relating to Mr Kollis, Mr Koutropoulos and Mr Dimopoulos. It might be inferred that it was the institution of these proceedings that was the true motivator resulting in the payment of compensation, as six consumers received compensation in December 2015. The defendants have also, on occasion, made inaccurate assertions as to compensation payments. By letter of 29 October 2015, to which I referred earlier, the defendants expressly stated “Mr Dimopoulos has also been fully refunded for expenses incurred.” However, the defendants later admitted Mr Dimopoulos was not refunded the balance due to him by way of compensation until 23 December 2015. I also note that, significantly, the orders of this Court dated 24 December 2015 were not complied with fully. To take an example, the tickets to be issued to Ms Saadea Abood and Ms Hefah Abood by 4 January 2016 were never issued. Rather, itineraries were provided on about 11 January 2016 which represented that Ms Saadea Abood and Ms Hefah Abood’s return flights had been confirmed when, in fact, they had not. Alternative tickets were later issued in lieu of those purchased, but were for return flights departing later than those purchased, causing the Aboods to incur additional expenses in Dubai.
Consideration
Section 224(3) of the ACL provides a maximum penalty of $220,000 for each contravention by an individual of a provision of Part 3-1 of the ACL. Further, as s 224(4) provides, an individual cannot be liable to more than one pecuniary penalty under that section in respect of the same contravening conduct if that conduct constitutes contravention of two or more provisions of Part 3-1. Relevantly, only one penalty ought be imposed for each of the 18 contraventions given the admitted contraventions of both ss 29(1)(m) and 36(4) of the ACL by the same conduct. I would treat the collection of representations made to each consumer as the “same conduct”, except in the cases of Ms Saadea Abood and Ms Hefah Abood, which I would treat as two courses of conduct on the basis that representations were made separately, both before and after the Aboods’ departure.
In Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd, Allsop CJ made the following observations as to the process in determining penalty:[14]
The process of arriving at the appropriate sentence for a criminal offence involves an intuitive or instinctive synthesis of all relevant factors: Markarian v The Queen [2005] HCA 25; 228 CLR 357. The approach set out by the High Court in Markarian can be taken to be applicable to civil penalty proceedings of this nature: TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190; 210 FCR 277 at 294 [145]; Australian Competition and Consumer Commission v EnergyAustralia Pty Ltd [2015] FCA 274 at [103]; Australian Competition and Consumer Commission v Reebok Australia Pty Ltd [2015] FCA 83 at [116]. The setting of the penalty is a discretionary judgment that does not involve assessing with any precision the “range” within which the conduct falls or by applying incremental deductions from the maximum penalty. Nonetheless, the maximum penalty must be given due regard because it is an expression of the legislature’s policy concerning the seriousness of the proscribed conduct. It also permits comparison between the worst possible case and the case the court is being asked to address and thus provides a yardstick: Markarian at 372 [31].
[14] Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330 at [6].
Accordingly, the maximum penalty of $220,000 in respect of each contravention would be reserved for the worst possible case of contravention. As has been recently confirmed, the accepted approach to imposing pecuniary penalty is not to impose a single global penalty in respect of the multiple contraventions, but to impose a penalty for each.[15] A proportionate and reasonable result can be reached by imposing a reduced penalty, or no penalty at all, in respect of some contraventions where suitable, provided deterrence is achieved.[16] Given the large number of contraventions of ss 29(1)(m) and 36(4) by the defendants, that is the approach which I consider appropriate in this case. The Court should fix a penalty which is appropriate for at least some of the contraventions. However, penalties need not be imposed in respect of every contravention where the deterrent effect will have been achieved by the penalties imposed for the earlier contraventions. I decline however to reduce the penalty for those later contraventions which were aggravated by virtue of having occurred after this Court’s order of 24 December 2015.
[15] Australian Securities and Investment Commission v Kobelt [2017] FCA 387 at [88].
[16] Australian Securities and Investment Commission v Kobelt [2017] FCA 387 at [97], [102]-[105].
In my opinion the appropriate penalties vary for each of the 18 contraventions, and for the first and second defendants. As the plaintiff submits, the first defendant played a less active role in comparison to the second defendant who had charge of Olympia’s day to day operations. Both defendants also submit that the first defendant’s involvement in the business substantially decreased in 2012 following the death of his wife. That said, penalties are warranted against the first defendant given his admitted liability, his presence at Olympia and continued engagement with consumers, and the fact he issued directions to the second defendant as to its operation. Nonetheless, his conduct is less culpable than that of the second defendant.
While it is clear that determining penalty is a matter of instinctive synthesis, the plaintiff points to the penalties imposed in Commissioner for Consumer Affairs v Lukeleo Pty Ltd[17] and Director of Consumer Affairs Victoria v Gibson (No 3).[18]The plaintiff submits that the conduct in Lukeleo fell at the lower end of the scale of seriousness, on the basis that ultimately no money was exchanged such that the impact on consumers was as low as could be. In contrast, the misleading and deceptive conduct in Gibson (No 3) represented more serious contraventions of the ACL, as the defendant represented that funds used to purchase her products or services would be applied for the benefit of a child with a terminal illness. In the former case, the director was ordered to pay $5,000 for each of the six contraventions, totaling $30,000. In the latter, the defendant was fined $30,000, $50,000, $90,000 and $150,000 for each of the five contraventions (having been fined $90,000 for two of those), totaling $410,000. The plaintiff submits that while $150,000 for each contravention would be too high in this case having regard to the objective seriousness, penalties similar to those in Gibson (No 3) would be appropriate. I do not accept this submission. In my view, the Court in this case should temper the purpose of deterrence and the cumulative impact of the aggregating penalties.
[17] [2017] SASC 168.
[18] [2017] FCA 1148.
Taking all the above into account I consider the appropriate penalties for each contravention are:
i.For contravening conduct against Mrs Moutsokapas, a penalty of $5,000 in relation to the first defendant, and $10,000 in relation to the second defendant.
ii.For the contravening conduct against Mr Al Ghizee, a penalty of $5,000 in relation to the first defendant and $10,000 in relation to the second defendant.
iii.For the contravening conduct against Ms Kourlis, a penalty of $5,000 will be imposed in relation to the first defendant and $10,000 in relation to the second defendant.
iv.For the contravening conduct against Mrs Nikari, a penalty of $5,000 will be imposed in relation to the first defendant, and $10,000 in relation to the second defendant.
v.For the contravening conduct against Ms Saadea Abood, a penalty of $10,000 in relation to the first defendant and $20,000 in relation to the second defendant.
vi.For the contravening conduct against Ms Hefah Abood, no further penalty will be imposed given this is substantially the same conduct as against Ms Saadea Abood.
vii.For the contravening conduct against Mr Kollis, a penalty of $5,000 in relation to the first defendant and $10,000 in relation to the second defendant.
viii.For the contravening conduct against Ms Kiziridis, a penalty of $5,000 in relation to the first defendant and $10,000 in relation to the second defendant.
ix.For the contravening conduct against Ms Karanastasis, a penalty of $2,500 in relation to the first defendant and $5,000 in relation to the second defendant.
x.For the contravening conduct against Mr Dimopoulos, a penalty of $2,500 in relation to the first defendant and $5,000 in relation to the second defendant.
xi.For the contravening conduct against Mrs Al Saeedy, a penalty of $2,500 in relation to the first defendant and $5,000 in relation to the second defendant.
xii.For the contravening conduct against Mrs Kotsonis, a penalty of $2,500 in relation to the first defendant and $5,000 in relation to the second defendant.
xiii.For the contravening conduct against Mr Giakoumis, no further penalty will be imposed.
xiv.For the contravening conduct against Ms Maretis, no further penalty will be imposed.
xv.For the contravening conduct against Mrs Economos, no further penalty will be imposed.
xvi.For the contravening conduct against Mrs Nikitas, no further penalty will be imposed.
That gives a total penalty figure of $50,000 in relation to the first defendant and $100,000 in relation to the second defendant. I am satisfied that these total figures represent a sum that is just and appropriate, given the nature of the contravening conduct as a whole.[19]
[19] See for example Director of Consumer Affairs Victoria v Gibson (No 3) [2017] FCA 1148 and Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 2) [2012] FCA 535.
No submissions were made as to the necessity of imposing a date by which the penalty must be paid. I would exercise my power under rule 225(2) of the Supreme Court Civil Rules 2006 (SA) to make the penalty due and payable within 28 days of the publication of this judgment. The plaintiff has indicated consent to the arranging of a payment plan. I would give leave to the defendants to apply to pay the penalties in instalments, on the condition that any such application is made within 14 days of the publication of this judgment and is supported by affidavit evidence of their income, assets and liabilities.
Compensation orders
The plaintiff seeks orders pursuant to s 237 of the ACL for the defendants to compensate those consumers who have not yet received compensation. Section 237 provides:
237 Compensation orders etc. on application by an injured person or the regulator
(1) A court may:
(a) on application of a person (the injured person) who has suffered, or is likely to suffer, loss or damage because of the conduct of another person that:
(i)was engaged in a contravention of a provision of Chapter 2, 3 or 4; or
(ii)constitutes applying or relying on, or purporting to apply or rely on, a term of a consumer contract that has been declared under section 250 to be an unfair term; or
(b) on the application of the regulator made on behalf of one or more such injured persons;
make such order or orders as the court thinks appropriate against the person who engaged in the conduct, or a person involved in that conduct.
Note 1: For applications for an order or orders under this subsection, see section 242.
Note 2: The orders that the court may make include all or any of the orders set out in section 243.
(2) The order must be an order that the court considers will:
(a) compensate the injured person, or any such injured persons, in whole or in part for the loss or damage; or
(b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the injured person or any such injured persons.
(3)An application under subsection (1) may be made at any time within 6 years after the day on which:
(a) if subsection (1)(a)(i) applies—the cause of action that relates to the conduct referred to in that subsection accrued; or
(b) if subsection (1)(a)(ii) applies—the declaration referred to in that subsection is made.
The plaintiff applies pursuant to s 237(1)(b) on behalf of the consumers who suffered damage by virtue of the defendants’ contraventions under Chapter 2 of the ACL. As the earliest of the contraventions the subject of this proceeding occurred in January 2016, no issue arises under s 237(3).
As is evident from the discussion at paragraphs [18] to [34] above, as at the dates of the admissions of the assertions contained in the Notice to Admit (6 April 2017 and 27 June 2017), some consumers had been paid compensation by the defendants and some had not. The evidence in that regard is:
Consumer Total amount paid to Olympia ($)
Total amount refunded by Olympia ($)
Balance ($)
Mr Giakoumis 3,200 3,565 Nil Ms Maretis 1,835 1,835 Nil Mrs Economos 16,560 16,580 1,900[20] Mrs Nikitas 6,890 Partial repayment (unspecified) 2,500[21] Mr Kollis 11,700 Nil 10,175[22] Ms Kiziridis 6,090 - Nil[23] Ms Karanastasis 4,350 2,570 Nil[24] Mr Dimopoulos 3,480 5,825 Nil Mrs Al Saeedy 1,850 1,990 Nil Mrs Kotsonis 600 2,328 Nil Mrs Moutsokapas 4,500 4,600 Nil Mr Al Ghizee Full payment (unspecified) Full refund (unspecified) Nil Ms Kourlis 7,100 3,500 3,600 Mrs Nikari 2,450 Nil 2,450 Ms Saadea Abood 7,700 Nil Ancillary expenses incurred Ms Hefah Abood 5,100 Nil Ancillary expenses incurred [20] This amount represents the additional cost paid by Mrs Economos for alternative travel arrangements, less $20. The $20 is the difference between that paid to Olympia and that refunded by Olympia.
[21] This amount represents the value of the flights Mrs Nikitas sought to rebook using credit owing to her by Olympia.
[22] While the amount paid by Mr Kollis exceeds that owed to him, the balance owing represents the amount specified in the conciliation agreement. That has now been paid.
[23] Alternative flights arranged.
[24] While the amount paid by Ms Karanastasis exceeds that refunded to her, she has been refunded the amount specified in the conciliation agreement.
As is also evident from the affidavit of Jeffrey Colin Betts affirmed 27 September 2017, Ms Saadea Abood and Ms Hefah Abood had alternative flights arranged by Olympia, but have not received further compensation for additional expenses they incurred as a result.
Following the hearing, the plaintiff provided further written submissions stating that both Mr Kollis and Ms Kourlis have since been fully repaid. Mrs Nikari and Mrs Nikitas have not been fully compensated for their loss. Mrs Economos is entitled to a further $1,900. Ms Saadea Abood and Ms Hefah Abood should be paid compensation for the incidental expenses they incurred as a result of the contraventions. Those expenses have not yet been quantified.
On the basis of the above I would order the following amounts be paid:
i.$2,450 to Mrs Nikari.
ii.$2,500 to Mrs Nikitas.
iii.$1,900 to Mrs Economos.
iv.A further amount to each of Ms Saadea Abood and Ms Hefah Abood to be determined following investigation into the amount of the incidental expenses incurred by them as a result of the contraventions.
I consider such compensation orders would place the consumers in the financial position they otherwise would have been if the contraventions had not occurred. Obviously, such orders only address the financial loss suffered by the consumers and not the stress they experienced as a result of the contraventions.
The plaintiff submits that compensation should be awarded to five of the six[25] additional consumers listed at paragraph [12] above. I am satisfied that is appropriate. I would award compensation as follows:
i.$2,034.69 to Ms Hatzimihail.
ii.$6,570 to Dr Khurram.
iii.$3,300 to Mr Protopapas.
iv.$2,700 to Ms Qureshi.
v.An amount to be determined to Mr Malik, pending investigation into the quantum of his loss.
[25] Ms Ying was able to reverse the relevant transactions through her banking institution so as to suffer no ongoing loss.
Injunctive relief
The plaintiff applies for orders 1 to 4 of 24 December 2015 to be made permanent. In the circumstances, I consider it appropriate to make those orders permanent pursuant to s 232 of the ACL. I consider that injunctive relief will act to protect against future contraventions of the ACL by the defendants, and will deter the second defendant in particular from ever resuming work as a travel agent. Even though the second defendant assures the Court she will not resume work as a travel agent, the authorities make clear that it may nevertheless be appropriate to mark the Court’s disapproval by an injunction in addition to a pecuniary penalty.[26]
[26] Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 at 300; Australian Competition and Consumer Commission v Bruhn [2012] FCA 959 at [33].
I would make orders in terms of those appended at Appendix B.
Consumer redress
Section 239 of the ACL provides a broad remedial power designed to allow the Court to undo damage caused to non-party consumers as a result of contravening conduct. It enables the Court to tailor the remedy to the damage in the particular case and avoid consumers going without compensation as a result of the loss being small or widespread.[27] Orders under s 239 are neither novel nor uncommon.[28] Section 239 provides:
[27] Australian Competition and Consumer Commission v AGL South Australia Pty Ltd [2015] FCA 399 at [80]-[81].
[28] Australian Competition and Consumer Commission v Lifestyle Photographers Pty Ltd [2016] FCA 1538 at [38].
239 Orders to redress etc. loss or damage suffered by non‑party consumers
(1) If:
(a) a person:
(i)engaged in conduct (the contravening conduct) in contravention of a provision of Chapter 2, Part 3‑1, Division 2, 3 or 4 of Part 3‑2 or Chapter 4; or
(ii)is a party to a consumer contract who is advantaged by a term (the declared term) of the contract in relation to which a court has made a declaration under section 250; and
(b) the contravening conduct or declared term caused, or is likely to cause, a class of persons to suffer loss or damage; and
(c) the class includes persons who are non‑party consumers in relation to the contravening conduct or declared term;
a court may, on the application of the regulator, make such order or orders (other than an award of damages) as the court thinks appropriate against a person referred to in subsection (2) of this section.
Note 1: For applications for an order or orders under this subsection, see section 242.
Note 2: The orders that the court may make include all or any of the orders set out in section 243.
(2) An order under subsection (1) may be made against:
(a) if subsection (1)(a)(i) applies—the person who engaged in the contravening conduct, or a person involved in that conduct; or
(b) if subsection (1)(a)(ii) applies—a party to the contract who is advantaged by the declared term.
(3) The order must be an order that the court considers will:
(a) redress, in whole or in part, the loss or damage suffered by the non‑party consumers in relation to the contravening conduct or declared term; or
(b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the non‑party consumers in relation to the contravening conduct or declared term.
(4)An application under subsection (1) may be made at any time within 6 years after the day on which:
(a) if subsection (1)(a)(i) applies—the cause of action that relates to the contravening conduct accrued; or
(b) if subsection (1)(a)(ii) applies—the declaration is made.
The preconditions to the making of an order have been established in this case. I am satisfied, on the basis of the multiplicity of complaints set out in the affidavit of Jeffrey Colin Betts affirmed 27 September 2017, that there are many consumers, beyond those in respect of whom I have made compensation orders, who may have been adversely affected by the defendants’ contraventions and will be left without compensation to which they might be entitled should I not grant the application for relief under s 239.
Those orders are appended at Appendix C to these reasons.
Costs
I would order that the defendants pay the plaintiff’s costs on a party/party basis.
Conclusion
I direct the plaintiff to bring into Court minutes of orders in conformity with these reasons.
APPENDIX A – DECLARATORY RELIEF
The Court declares that between March 2015 and March 2016 the first and second defendants (Vasillios Koutropoulos and Mary Boufkas), in trade and commerce:
1.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);
2.made false and misleading representations as to consumers’ contractual rights in contravention of s 29(1)(m) of the Australian Consumer Law (SA); and
3.wrongly accepted payment from consumers by failing to supply services within the period specified for the supply of that service in contravention of s 36(4) of the Australian Consumer Law (SA)
by representing to consumers that they could use international airline travel, accommodation, tours or travel insurance arranged by the defendants (the “international travel services”); accepting payment for such international travel services; representing to consumers that their international travel services were confirmed and that consumers had contractual rights to use same; and failing to properly transfer sufficient funds so as to enable consumers to have the contractual right to enjoy the international travel services in connection with the consumers and travel arrangements set out below:
i. Nickolas Kollis as to the provision of airline tickets for six persons on Emirates Flight No. EK106 scheduled to depart Athens, Greece on 26 August 2015;
ii. Effie Kiziridis as to the provision of airline tickets for two persons on Singapore Airlines Flight No. SQ278 scheduled to depart Adelaide on 8 September 2015;
iii. George Giakoumis as to the provision of return airline tickets for two persons on Virgin Australia and Qatar Airways flights between Athens, Greece and Adelaide departing Athens on 7 July 2016;
iv. Athena Karanastasis as to the provision of airline tickets for two persons on Singapore Airlines Flight No. SQ391 scheduled to depart Istanbul, Turkey on 28 September 2015 and Singapore Airlines Flight No. SQ279 scheduled to depart Singapore on 29 September 2015 and hotel accommodation for two people in Paros, Greece;
v. Konstantino Dimopoulos as to the provision of airline tickets for two persons on Emirates Airline Flight No. EK106 departing Athens, Greece on 13 October 2015 and Emirates Airline Flight No. EK440 departing Dubai on 14 October 2015;
vi. Saadea Abood as to the provision of return airline tickets for five persons on the following international airline flights: between Australia and Najif Iraq (via Perth and Doha, Qatar) departing Adelaide on Flight No. QF595 on 22 November 2015, between Najif Iraq and Dubai, UAE (via Doha, Qatar) departing Najif on Flight No. QR457 on 17 January 2016; and between Dubai, UAE and Adelaide (via Doha and Hong Kong) departing Dubai on Flight No. QR1301 on 22 January 2016;
vii. Hefah Abood as to the provision of return airline tickets for four persons on international airline flights between Australia and Najif Iraq (via Perth and Doha, Qatar) departing Adelaide on Flight No. QF595 on 22 November 2015, between Najif Iraq and Dubai, UAE (via Doha, Qatar) departing Najif on Flight No. QR457 on 17 January 2016 and between Dubai, UAE and Adelaide (via Doha and Hong Kong) departing Dubai on Flight No. QR1031 on 23 January 2016;
viii. Saadea Abood as to the provision of airline tickets for five persons on the following international airline flights: between Najif, Iraq and Dubai, UAE departing Najif on Flight No. FZ222 on 17 January 2016; and between Dubai, UAE and Adelaide departing Dubai on Flight No. EK440 on 23 January 2016;
ix. Hefah Abood as to the provision of airline tickets for four persons on the following international airline flights: between Najif, Iraq and Dubai, UAE departing Najif on Flight No. FZ222 on 17 January 2016; and between Dubai, UAE and Adelaide departing Dubai on Flight No. EK440 on 23 January 2016;
x. Ramzeyah Al Saeedy as to the provision of return airline tickets for her husband Mr Majed Hassan Sadek Al Rammahy on Qatar Airways flights between Adelaide and Iraq departing on 21 November 2015;
xi. Anastasia Maretis as to the provision of return airline tickets for one person on Emirates Airlines flights between Adelaide and Greece departing July 2015 and return tickets for one person on Emirates Airlines flights between Adelaide and Greece departing July 2016;
xii. Angeliki Kotsonis as to the provision of travel insurance for two persons in relation to travel to China between 28 August 2015 and 4 September 2015;
xiii. Fanoula Moutsokapas as to the provision of return airline tickets for three persons on Qatar Airways flights between Adelaide and Greece departing Adelaide on 4 May 2016;
xiv. Ammar Ateya Twice Al Ghizee as to the provision of airline tickets for two persons on Emirates Airlines flights between Adelaide and Basrah, Iraq as follows: a departing flight for one person leaving Adelaide on 12 March 2016; and a return flight for two people flying from Basrah, Iraq on 25 April 2016;
xv. Nicoletta Alexia Kourlis as to the provision of return airline tickets for two persons on international airline flights between Adelaide and Cape Town departing Adelaide on 11 April 2016;
xvi. Ann Nikari as to the provision of return airline tickets for one person on Emirates Airline flights from Athens to Adelaide (via Dubai) departing Athens on Emirates Flight No. EK106 on 2 June 2016;
xvii. Kathy Economos as to the provision of tickets for two persons for air travel and associated travel bookings as follows:
a.flights from Adelaide to London departing 6 May 2016;
b.a flight between Paris and Barcelona departing 20 May 2016;
c.a flight between Barcelona and Rome departing 25 May 2016;
d.a flight between Rome and Adelaide (via Singapore) departing 5 June 2016;
e.tickets for two people on the Eurostar high speed railway service between the United Kingdom and France in May 2016;
f.airport transfers between the relevant airports and hotels in the following cities: London, Paris and Barcelona;
g.a tour of Italy commencing on or around 25 May 2016; and
h.accommodation in conjunction with the above travel; and
xviii. Athanasia Nikitas as to the provision of return airline tickets for one person on international return airline flights between Adelaide and Athens, Greece.
APPENDIX B – INJUNCTIVE RELIEF
1. The first defendant be restrained, whether by himself, his agents, employees or otherwise, in trade or commerce, from representing to any person (‘consumer’) that the consumer has a confirmed booking and/or ticket for services supplied by a third party through the first defendant, in circumstances where the consumer does not have any such confirmed booking and/or ticket.
2. That in the event that the first defendant, whether by himself, his agents, employees or otherwise, in trade or commerce, receives any payment from any consumer for the purchase by the consumer of services supplied by a third party including international airline travel services, that the first defendant is required to:
2.1.transfer the payment to the third party within 72 hours of receipt of the payment in cleared funds;
2.2.confirm the consumer’s booking with the third party within 72 hours of receipt of the payment in cleared funds; and
2.3.issue the consumer with tickets or confirmation of the consumer’s booking within 72 hours of receipt of the payment in cleared funds.
3. The second defendant be restrained from being in any way, directly or indirectly, knowingly concerned in, or party to any representation by the first defendant, whether by himself, his agents, employees or otherwise, in trade or commerce, to any consumer that the consumer has a confirmed booking and/or ticket for services supplied by a third party through the first defendant, in circumstances where the consumer does not have any such confirmed booking and/or ticket.
4. That in the event that the second defendant, whether by herself, her agents, employees or otherwise, in trade or commerce, receives any payment from any consumer for the purchase by the consumer of services supplied by a third party including international airline travel services, that the second defendant is required to:
4.1.transfer the payment to the third party within 72 hours of receipt of the payment in cleared funds;
4.2.confirm the consumer’s booking with the third party within 72 hours of receipt of the payment in cleared funds; and
4.3.issue the consumer with tickets or confirmation of the consumer’s booking within 72 hours of receipt of the payment in cleared funds.
APPENDIX C – ORDERS FOR CONSUMER REDRESS
1. Within 21 days from the date of this order the defendants send by post or electronically a notice in the form set out below to each consumer who had purchased or attempted to purchase travel services from the defendants during the period of March 2015 to March 2016 (“the non-party consumers”), to the most recent address held by the defendants for each consumer (be that an email or postal address).
2. Within 21 days from the date of this order the defendants arrange and pay for a notice in the form of the notice set out below to be placed in the Adelaide Advertiser.
3. Within 21 days from the date of this order the defendants arrange and pay for a notice in the form of the notice set out below to be placed in the Greek Community Tribune Australia.
4. Within 21 days from the date of this order the plaintiff publish on Consumer and Business Services’ website ( a notice in the form of the notice set out below.
5. Within 76 days of the date of this order the plaintiff is to produce to the defendants a list of non-party consumers who provide the notice set out after paragraph 7.
6. Pursuant to s 239 of the Australian Consumer Law, within 104 days of this order, the defendants jointly and severally provide all non-party consumers contained in the list referred to at order 5 who either:
6.1.suffered loss as a result of a failure by Mr Koutropoulos or Ms Boufkas to provide travel services to a consumer identified in part 1 paragraph 4 of the second statement of claim; or otherwise
6.2.suffered loss by purchasing travel services through one or both of the defendants but who were not provided with confirmed bookings and contractual rights for such travel services
with compensation for the above loss, minus any compensation already paid by the defendants, plus interest calculated at the rate of 6 per cent per annum from the date that the non-party consumer suffered the relevant loss to the date that the defendants make payment pursuant to this order.
7. The defendants to file and serve an affidavit of compliance detailing the sending of notices and payment of compensation as referred to in orders 1 to 6 within 114 days of the date of this order.
Form of Notice
Vasilios Koutropoulos and Mary Boufkas, operators of Olympia Express Tourist and Travel Office, have accepted that they engaged in misleading and deceptive conduct in the provision of travel services to consumers since at or around March 2015 in breach of the Australian Consumer Law (SA).
By court order, Mr Koutropoulos and Ms Boufkas must now pay compensation to affected consumers. The purpose of this notice is to invite affected consumers to apply for such compensation.
Should you believe that:
1. you suffered loss as a result of a failure by Mr Koutropoulos or Ms Boufkas to provide travel services to any of the following people: Nickolas Kollis; Effie Kiziridis; George Giakoumis; Athena Karanastasis; Konstantinos Dimopoulos; Saadea Abood; Hefah Abood; Ramzeyeh Al Saeedy; Anastasia Maretis; Angeliki Kotsonis; Fanoula Moutsokapas; Ammar Ateya Twice Al Ghizee; Nicolette Alexia Kourlis; Ann Nikari; Kathy Economos; or Athanasia Nikitas; or
2. you paid money to either Mr Koutropoulos or Ms Boufkas for travel services, for example, but not limited to, airline tickets, travel insurance or hotel bookings, but were not provided with confirmed bookings for those travel services;
Mr Koutropoulos and Ms Boufkas are required to re-pay to you the amount of that loss or the amount paid for those services, less any amount already paid to you by Mr Koutropoulos or Ms Boufkas as a refund or compensation.
Should you, or anyone you know, satisfy the above criteria and wish to obtain compensation please notify Consumer and Business Services [insert date 48 clear days from the days from the date of this letter] on the following contact details:
Consumer and Business Services
GPO Box 1719
ADELAIDE SA 5001Consumer and Business Services will then assess your circumstances, seek further information from you and provide your details to Vasilios Koutropoulos and Mary Boufkas so, if appropriate, compensation can be made.
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