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.
COMMISSIONER FOR CONSUMER AFFAIRS v KOUTROPOULOS & ANOR
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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In the matter of Commissioner for Consumer Affairs v Koutropoulos, the court addressed the contravention of consumer protection laws by Vassilios Koutropoulos and Mary Boufkas, who jointly operated a travel agency, Olympia Express Tourist and Travel Office. The defendants admitted to breaches of sections 18(1), 29(1)(m), and 36(4) of the Australian Consumer Law (SA), concerning misleading or deceptive conduct, false representations, and wrongly accepting payment. These admissions followed a series of incidents where consumers paid for international travel services but did not receive confirmed bookings or tickets, leading to financial loss and inconvenience. The court was tasked with determining the appropriate relief and penalties, including pecuniary penalties, compensation orders, injunctions, consumer redress, and costs.
The court considered various factors in determining the penalty, including the nature of the contraventions, the number of affected consumers, and the degree of cooperation by the defendants. The court noted that while the defendants had made extensive admissions and participated in conciliation conferences, they had also made inaccurate assertions and failed to comply with previous court orders. The court applied the principles set out in Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd, emphasizing the need for an intuitive synthesis of all relevant factors. Given the maximum penalty of $220,000 for each contravention by an individual, the court imposed penalties for each of the 18 contraventions, treating certain representations as separate courses of conduct.
The court ordered the defendants to pay compensation to affected consumers, issue public notices, and comply with specific injunctive relief requirements. Vassilios Koutropoulos and Mary Boufkas were restrained from representing to consumers that they had confirmed bookings and tickets for services supplied by third parties when they did not. They were required to transfer payments to third parties within 72 hours of receipt, confirm consumer bookings, and issue tickets or confirmation within the same timeframe. The defendants were also ordered to pay the plaintiff’s costs on a party/party basis.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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”); and4.4.2 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; and4.6.3between 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; and4.7.3between 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; and4.12.2a 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; and4.15.8accommodation in conjunction with the above travel (collectively “Mrs Economos’ Purchased Flights, Tour and Accommodation”); and4.16 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.
Evidence
Evidence Before The Court
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
Decision
Reasons for decision
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 RELIEFThe 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); and3.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 RELIEF1. 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; and2.3.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; and4.3.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 REDRESS1. 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 otherwise6.2.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 serviceswith 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 NoticeVasilios 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; or2. 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 ServicesGPO Box 1719ADELAIDE 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.
Ratio Decidendi
Legal Principle Established
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].
