Commissioner for Consumer Protection v Akrawy - [2023] WADC 109

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   COMMISSIONER FOR CONSUMER PROTECTION -v- AKRAWY [2023] WADC 109
CORAM:   PALMER DCJ
HEARD:   22 AUGUST 2023, WRITTEN SUBMISSIONS 12 SEPTEMBER 2023
DELIVERED          :   22 SEPTEMBER 2023
FILE NO/S:   CIV 654 of 2023
BETWEEN:   COMMISSIONER FOR CONSUMER PROTECTION
Plaintiff
AND
HAVAL AKRAWY
Defendant

Catchwords:

District Court - Jurisdiction - Claim for pecuniary penalty for contravention of Australian Consumer Law - Claims for declaratory relief - Determination of appropriate penalty - Australian Consumer Law - District Court of Western Australia Act 1969 (WA)

Legislation:

Australian Consumer Law, s 224
Competition and Consumer Act 2010 (Cth)
District Court Act 1973 (NSW)
District Court of Western Australia Act 1969 (WA), s 50, s 55
Fair Trading Act 1987 (WA)
Rules of the Supreme Court 1971 (WA)
Trade Practices Act 1974 (Cth)

Result:

Motion for default judgment granted
Declarations made
Pecuniary penalties imposed

Representation:

Counsel:

Plaintiff	:	Mr J L Derby
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Department Of Mines, Industry Regulation And Safety - Legal Services Directorate
Defendant	:	Not applicable

Case(s) referred to in decision(s):

Attorney General v Lord Churchill (1841) 10 LJ Ex 314; (1841) 151 ER 997
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450
Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) [2002] FCA 559; (2002) 190 ALR 169
Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No 3) [2015] FCA 583
Australian Competition and Consumer Commission v Birubi Art Pty Ltd (in liq) (No 3) [2019] FCA 996; (2019) 374 ALR 776
Australian Competition and Consumer Commission v Chopra [2015] FCA 539
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427; (2006) 236 ALR 665
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; (2007) 161 FCR 513
Australian Competition and Consumer Commission v EDirect Pty Ltd (in liq) [2012] FCA 976; (2012) 206 FCR 160
Australian Competition and Consumer Commission v Rural Press Ltd [2001] FCA 1065
Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640
Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; (2011) 195 FCR 1
Bass v Permanent Trustee Co Ltd [1999] HCA 9 [47]; (1999) 198 CLR 334
Boschetti v Carr [2002] WASC 211
Chianti Pty Ltd v Leume Pty Ltd [2007] WASCA 270; (2007) 35 WAR 488
City of Stirling v Dueschen [2011] WASC 126
Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation) Ltd (1991) 5 WAR 208
Commissioner for Consumer Affairs (SA) v Goros (No 2) [2023] SASC 1
Commissioner for Consumer Protection v Realgold Corporation Pty Ltd [2014] WADC 51; (2014) 86 SR (WA) 16
Commissioner for Consumer Protection v Susilo [2014] WASC 50
Commissioner for Consumer Protection v Unleash Solar Pty Ltd (in Liq) (No 2) [2016] FCA 1177
Director of Consumer Affairs v Nightingale Electrics Pty Ltd [2016] FCA 279
Faithfull v Woodley (1889) 43 Ch D 287
Healthy Nut Cafe Pty Ltd v Finn [2018] WADC 118
Hipages Group Pty Ltd v Reach Aussie Pty Ltd [2017] FCA 112
In re F (Mental Patient Sterilisation) [1990] 2 AC 1
Kenny v Preen [1963] 1 QB 499
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285
Phonographic Performance Ltd v Maitra [1998] 2 All ER 638
Re Trade Practices Commission v CSR Ltd [1990] FCA 521; (1991) 13 ATPR 41-076
Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249
Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd R 192
The Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482
Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702
Wallersteiner v Moir [1974] 1 WLR 991
Woolcott v Seeger [2010] WASC 19
Young v Thomas [1892] 2 Ch 134

PALMER DCJ:

Introduction

By way of a Notice of Motion dated 17 April 2023 (the Motion), the plaintiff, the Commissioner for Consumer Protection (the Commissioner), moves for judgment in default of appearance pursuant to O 13 r 9(1)(a) of the Rules of the Supreme Court 1971 (WA) (RSC) against the defendant, Mr Haval Akrawy.
The Commissioner's application is necessary because the claims made by the Commissioner in the Statement of Claim (Statement of Claim) indorsed on the Writ of Summons dated 14 February 2023 are not claims to which O 13 r 9(2) - r 9(6) of the RSC apply. In the Statement of Claim the Commissioner alleges that Mr Akrawy contravened s 36(4) and s 100(1) of the Australian Consumer Law (ACL) and seeks:
(a)declarations that Mr Akrawy contravened the ACL in the manner pleaded;
(b)pecuniary penalties pursuant to s 224(1) ACL; and
(c)costs.
For the reasons that follow, I am satisfied that this court has jurisdiction, Mr Akrawy has contravened the ACL and he should pay a pecuniary penalty of $60,000 for his contraventions of s 36(4) and a pecuniary penalty of $150 for his contraventions of s 100(1). I will also make the declaratory relief sought in relation to Mr Akrawy's contravention of s 36(4). I will order that Mr Akrawy pay the Commissioner's costs of the proceedings.

Jurisdiction

The question of whether this court has jurisdiction to grant declaratory relief in civil penalty proceedings was considered by Keen DCJ in Commissioner for Consumer ProtectionvRealgold Corporation Pty Ltd.[1] Counsel for the Commissioner relied upon that judgment in this case. Keen DCJ concluded that this court had such jurisdiction under s 50 of the District Court of Western Australia Act 1969 (WA) (the District Court Act). His Honour said:
[1] Commissioner for Consumer ProtectionvRealgold Corporation Pty Ltd [2014] WADC 51; (2014) 86 SR (WA) 16 (Realgold).
13 The Commissioner relies upon s 50 District Court of Western Australia Act 1969 to ground the jurisdiction of this court to deal with the current matter. That section provides that 'the Court has all of the powers and authority that the Supreme Court has and may exercise from time to time in relation to all personal actions where the amount, value or damages sought to be recovered is not more than the jurisdictional limit …'. In her statement of claim the Commissioner has limited her claim for a pecuniary penalty as not exceeding $750,000 - the upper limit of the jurisdiction of the District Court.
…
16 In respect of the declaratory relief sought the Commissioner relies upon s 55 District Court of Western Australia Act which provides:
'The Court or a District Court judge has, as regards any action or matter within its or his jurisdiction for the time being, power -
(a) to grant, and shall grant, in the action or matter such relief, redress or remedy, or combination of remedies, either absolute or conditional; and
(b) to make any order that could be made in regard to any action or matter, and shall in each such action or matter give such and the like effect to every ground of defence or counterclaim equitable or legal,
in a full and ample manner as might and ought to be done in the like case by the Supreme Court or a judge thereof'.
17 I am satisfied that a pecuniary penalty pursuant to s 224 of the ACL in respect of a corporation engaging in misleading or deceptive conduct or a person knowingly concerned in and party to or aiding and abetting such conduct is a personal action within the meaning of s 50 District Court of Western Australia Act. In the present case the amount claimed by the Commissioner does not exceed the jurisdictional limit of the court.
…
19 The power to grant declaratory relief is a power granted as ancillary relief. Ancillary relief to a claim within the jurisdiction of the court may be granted: Hondros & TholetvChesson [1981] WAR 146, 147, citing De VriesvSmallridge [1928] 1 KB 482, 488; Matthews vBayview Holiday Village Pty Ltd (1990) 2 WAR 167, 170. The claim within the jurisdiction to which the proposed declaration is ancillary is the claim by way of a personal action in respect of the pecuniary relief sought.
20 For those reasons I am satisfied the court has jurisdiction to entertain this claim.

Whether the Commissioner's claim is a 'personal action'

With respect, I agree with Keen DCJ's conclusion that the Commissioner's claim for a pecuniary penalty pursuant to s 224 of the ACL is a personal action within the meaning of that term used in s 50 of the District Court Act. It seems to me, however, that the position is not entirely free from doubt.
The meaning of the term 'personal action' was considered by the Full Court in Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation) Ltd[2] and the Court of Appeal in Chianti Pty Ltd v Leume Pty Ltd.[3] Those decisions were discussed by Gillan DCJ in Healthy Nut Cafe Pty Ltd v Finn.[4]
[2] Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd)vMercantile Mutual Insurance (Workers' Compensation) Ltd (1991) 5 WAR 208 (Commercial Developments).
[3] Chianti Pty Ltdv Leume Pty Ltd [2007] WASCA 270; (2007) 35 WAR 488 (Chianti).
[4] Healthy Nut Cafe Pty LtdvFinn [2018] WADC 118 [23] - [30] (Healthy Nut Cafe Pty Ltd).
In Commercial Developments Malcolm CJ referred,[5] with apparent approval,[6] to the meaning of the expression 'personal action' given by Parke B in Attorney GeneralvLord Churchill,[7] and in Sir William Blackstone's Commentaries on the Laws of England.[8] In Attorney GeneralvLord Churchill,[9] Parke B said that 'personal action':
... is capable of two different senses; actions may be personal as contradistinguished from real and mixed, the first being actions against the person only for damages, the second for recovery of real estate and the third for both. In this sense of the word 'personal', there appears to be no question but that information of intrusion is a personal action for its object is the recovery of damages, not the recovery of the estate, for the Crown has never in contemplation of law lost it. But the word 'personal' may mean such actions as are for the recovery of debts or damages to the person or personal effects; and in this sense of the word, a writ of intrusion is not a personal action.
[5] Commercial Developments (219) - (220).
[6] Chianti [51] (Buss JA); Healthy Nut Cafe Pty Ltd [27] (Gillan DCJ).
[7] Attorney GeneralvLord Churchill (1841) 10 LJ Ex 314; (1841) 151 ER 997.
[8] Blackstone W, Commentaries on the Laws of England (1768) Vol 3, page 117.
[9] Attorney GeneralvLord Churchill.
Malcolm CJ referred[10] to the following extract of Blackstone's Commentaries on the Laws of England that he said encompassed both senses of the definition:
Personal actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereof; and likewise whereby a man claims a satisfaction in damages for some injury done to his person or property. The former is said to be founded on contracts, the latter upon torts or wrongs: and they are the same which the civil law calls 'actiones in personum, quae adversus eum intenduntur, qui ex contractu vel delicto obligatus est aliquid dare vel concedere' of the former nature are all actions upon debt or promises; of the latter all actions are trepasses, nuisances, assault, defamatory words, and the like.
[10] Commercial Developments (219) - (220).
In Chianti, Buss JA referred to the judgment of Priestley JA of the New South Wales Court of Appeal in Vale v TMH Haulage Pty Ltd.[11] Buss JA observed that Priestley JA's approach could be contrasted with the approach of Malcolm CJ in Commercial Developments. Buss JA said:
[11] Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702 (Vale).
55 In Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702, the Court of Appeal of New South Wales construed the expression 'any personal action at law' in s 44(1) of the District Court Act 1973 (NSW), which conferred jurisdiction on the District Court of New South Wales in 'any personal action at law where the amount claimed does not exceed' a specified amount. Priestley JA (with whom Meagher and Sheller JJA agreed) refused to construe the expression by reference to authorities dating back to well before Blackstone. The approach to construction of Priestley JA is to be compared to and contrasted with the approach of Malcolm CJ in Commercial Developments at 219 - 220, notwithstanding that the expression in the New South Wales legislation is 'any personal action at law' whereas the expression in s 50(1)(a) of the Act is 'personal actions'. Priestley JA said:
In my view, parliament must have intended in legislating in 1973 in regard to the District Court, whose jurisdiction had become steadily more important throughout this century, to describe its jurisdiction in the legal language of the present day; and, in my opinion the way the term 'personal action at law' was understood in 1973 in New South Wales was substantially that described in The Oxford Companion to Law, (Professor DM Walker, (1980)) as follows (at 949):
'Personal action. At common law in England, personal actions were distinguished from real actions (qv) and mixed actions (qv). They were claims against persons arising out of contracts or out of torts, the former comprising the actions of account, assumpsit, covenant, debt and certain others, the latter comprising attaint, case, deceit, champerty, conspiracy, detinue, replevin, trespass, trover, and certain others. All these were abolished in the nineteenth century together with their individual original writs and distinct forms of procedure. The term is now frequently given to an action in personam, where the judgment of the court is a personal one, normally for payment of money, as contrasted with an action in rem, where the plaintiff seeks to make good a claim to or against certain property in respect of which, or in respect of damage done by which, he alleges that he has an actionable demand.' (707)
Priestley JA held that the District Court of New South Wales had jurisdiction with respect to the recovery of a debt against former directors of a company under s 556 of the Companies (Victoria) Code and the Companies (New South Wales) Code. A claim under s 556 was a 'personal action at law'. It was not a claim of an equitable kind, or a claim in rem.
56 The observations of Priestley JA in Vale, in relation to the expression 'any personal action at law', were referred to, with apparent approval, in Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; (2007) 81 ALJR 662 [21] (Gleeson CJ, Gummow, Hayne, Callinan, Heydon & Crennan JJ), [98] (Kirby J).
The District Court Act was passed in 1969, around the same time as the District Court Act 1973 (NSW). The observations made by Priestley JA in Vale about the intention of the legislature in New South Wales in 1973, might equally be thought to apply to the intention of the legislature of this state when it passed the District Court Act in 1969.
The meaning of 'personal action' adopted by Priestley JA in Vale is more readily applicable to the variety of contemporary legal practice, than the historic meaning suggested by Malcolm CJ in Commercial Developments. I am satisfied that if Priestley JA's approach is adopted in this case, this court would have jurisdiction in relation to the Commissioner's claim. The Commissioner's claim is an action in personam, not an action in rem. It seems to me, however, that the position is less clear if the approach of Malcolm CJ in Commercial Developments is to be adopted.
An action for damages for a contravention of the Trade Practices Act 1974 (Cth) (the TPA) (the forerunner of the Competition and Consumer Act 2010 (Cth)) has been held to be a personal action. In Startune Pty LtdvUltra-Tune Systems (Aust) Pty Ltd[12] the Queensland Court of Appeal considered the jurisdiction of the District Court in Queensland to determine a claim for damages for breach of the TPA. The court considered that a claim for damages under a statute may be regarded as satisfying the description of a personal action within the jurisdiction of the District Court (subject to the quantum of damages being within that court's monetary jurisdiction).[13]
[12] Startune Pty LtdvUltra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd R 192 (Startune).
[13] Startune(197).
This court would therefore seem to have jurisdiction in relation to a claim for damages for a contravention of the ACL but the Commissioner's claim is for a pecuniary penalty and associated declaratory relief. A claim for a pecuniary penalty is a civil proceeding[14] to which the civil rules of evidence apply[15] but it is not a claim for damages. A claim for damages for a contravention of the ACL is made under s 236 of the ACL. An application for a pecuniary penalty is made under s 224 of the ACL. A claim for damages is compensatory. A pecuniary penalty is penal and is intended to deter contravention of the ACL.
[14] ACL s 228.
[15] See Fair Trading Act 1987 (WA) s 33; ACL s 224 and s 228.
Further, although the Commissioner is a person, she is a person who is charged with a regulatory function. Through these proceedings she seeks to discharge that regulatory function, she does not seek to vindicate some private right.
I have not been able to identify any cases in which the question of whether or not a claim for a pecuniary penalty is a personal action other than Realgold. Nor was I referred to any such case.
It seems to me that a claim for a pecuniary penalty does not fit neatly into the characterisation of 'personal actions' in the older authorities referred to by Malcolm CJ in Commercial Developments. Ultimately, however, I am on balance inclined to think that it can be characterised as a personal action. Like a claim for damages for a breach of the ACL, a claim for a pecuniary penalty is a claim for payment of a monetary sum consequent on the breach of a statutory obligation. Both actions concern a contravention of the ACL. While it is true that the monetary sum paid in a civil penalty action will not be calculated on a compensatory basis, in my view, such a claim is sufficiently analogous to a claim for damages to bring it within the jurisdiction of this court.
Both s 224 and s 236 are remedies for contraventions of the ACL under Part 5-2 of the ACL. It would seem strange (and undesirable) that this court would have jurisdiction in relation to one remedy in Part 5-2 but not another.

The District Court's jurisdiction to grant the declaration relief sought

In Commercial Developments Malcolm CJ also considered that, in relation to a matter that was within its jurisdiction, the District Court only has limited jurisdiction to grant equitable relief (including declarations) pursuant to s 55 and s 57 of the District Court Act and s 25 of the Supreme Court Act 1935 (WA). Malcolm CJ said that the power to grant such equitable remedies is in the nature of an ancillary or auxiliary power to be exercised in the determination of claims otherwise within the jurisdiction of the court.[16] This aspect of Malcolm CJ's judgment in Commercial Developments was referred to with apparent approval by Buss JA in Chianti.[17]
[16] Commercial Developments (217).
[17] Chianti [52].
Therefore, even if this court has jurisdiction in relation to a claim for a pecuniary penalty because it is a personal action, it only has jurisdiction to grant the declaratory relief sought by the Commissioner, if the grant of such relief is 'ancillary'.
With regard to what is meant by 'ancillary' in Commercial Developments Malcolm CJ referred to KennyvPreen[18] where Donovan LJ[19] described ancillary relief as being subservient to principal relief in the sense that it serves and assists the principal relief.
[18] KennyvPreen [1963] 1 QB 499.
[19] Kenny v Preen (516).

KennyvPreen concerned an action brought by a tenant against a landlord who had threatened to evict the tenant. The tenant brought an action in the County Court seeking a declaration that her tenancy was protected by the Rent Act, an injunction to restrain the landlord from interfering with her covenant for quiet enjoyment and damages for breach of that covenant. The deputy County Court judge held that the landlord's conduct was in breach of the covenant for quiet enjoyment and granted an injunction and damages but refused to grant the declaratory relief sought because he considered it was not ancillary to the claim for damages.
The Court of Appeal (Ormerod, Donovan & Pearson LLJ) agreed that the claim for a declaration was not ancillary in the sense of serving or assisting the claim for damages but raised a different major issue.
Pearson LJ (with whom Ormerod LJ agreed)[20] observed that the difficulty with the declaration asked for was that it was not merely a declaration that the tenancy existed but went a step further and asked for a declaration that the tenancy was protected by the Rent Act. It was said that this further step was a major step that was not something ancillary.[21]
[20] Kenny v Preen (514).
[21] Kenny v Preen (514).
Donovan LJ said:[22]
It is argued that in order to establish the money claim a tenancy had to be established of unfurnished premises, and that therefore it would be right to declare that that fact had been established. But if this were so, why should not a declaration be asked for of every fact which had to be established as the foundation for a money claim? This, however, would not be the granting of ancillary relief. Ancillary means subservient to; and here it does not serve or assist this particular claim for damages to declare that the plaintiff's tenancy is protected by virtue of the Rent Acts. A different wording is now proposed, namely, that her tenancy is an unfurnished tenancy and as such entitled to protection. But, as I understand the matter, this will still leave open the question whether it remains a contractual or has become a statutory tenancy. And whichever it is does not affect the claim for damages. That she was a tenant of one sort or another was not disputed.
[22] Kenny v Preen (516).
In my view, the declaratory relief claimed by the Commissioner is ancillary. The declarations sought by the Commissioner are that Mr Akrawy contravened the ACL in the manner alleged in the Statement of Claim. A finding that Mr Akrawy contravened the ACL in the manner alleged in the Statement of Claim would be a necessary step before I could impose any pecuniary penalty under s 224 of the ACL. This is because s 224(1)(a) provides that I can only impose a pecuniary penalty if I am satisfied of a contravention. The grant of the declaratory relief sought therefore does not raise any new issue or extend the scope of the matters that would otherwise need to be decided. I consider that the declaratory relief sought is subservient to the claim for a pecuniary penalty in the necessary sense.
For these reasons, with respect, I also agree with Keen DCJ's conclusion in Realgold that the declaratory relief of the kind sought here is ancillary.

The Commissioner is entitled to default judgment

The Motion is moved pursuant to O 13 r 9(1)(a) of the RSC. Order 13 r 9(1) and r 9(2) provides:
(1) If the writ is indorsed with a claim to which none of rules 2 to 6 apply, then, if a defendant fails to enter an appearance within the time limited for appearing, the plaintiff may, on complying with subrule (2) -
(a)apply to the Court on motion for judgment against the defendant for the relief sought and costs; and
(b)proceed with the action against the other defendants, if any, unless the defendants are sued in the alternative.
(2) In order to enter judgment under this rule -
(a)if the statement of claim was not indorsed on or served with the writ, the plaintiff must serve the statement of claim on the defendant; and
(b)the plaintiff must produce a certificate issued by the proper officer on the day of the hearing stating that no appearance has been entered by the defendant against whom it is sought to enter judgment.
The Commissioner has filed an Affidavit of Service of Cheryl Lorraine Harrison sworn 23 February 2023. In par 1 of that affidavit, Ms Harrison deposes to personally serving Mr Akrawy with a copy of the writ of summons on 22 February 2023.
As mentioned, the Statement of Claim is indorsed on the writ. Therefore, there was no need to separately serve that document to comply with O 13 r 9(2)(a).
Mr Akrawy had 10 days from the service of the writ on 22 February 2023 to enter an appearance.
At the hearing of the Motion before me on 22 August 2023, counsel for the Commissioner tendered a letter from the District Court also dated 22 August 2023 that confirmed that as of that date, Mr Akrawy had not entered an appearance. That letter was stated to be issued pursuant to O 13 r 9(2) of the RSC.
I am satisfied that the requirements of O 13 r 9(2) have been satisfied and the Commissioner is entitled to default judgment.

The relevant material before the court

The failure to enter an appearance results in a deemed admission of the allegations of fact contained in the Statement of Claim.[23] The facts are taken to be established and generally no evidence can be called to establish them upon a motion for judgment.[24]
[23] City of StirlingvDueschen[2011] WASC 126 [48] (Dueschen); Woolcott vSeeger [2010] WASC 19 [10]; FaithfullvWoodley (1889) 43 Ch D 287, 289.
[24] BoschettivCarr [2002] WASC 211 [30] (Hasluck J); YoungvThomas [1892] 2 Ch 134, 137; Phonographic Performance LtdvMaitra [1998] 2 All ER 638.
This principle is not applied rigidly where discretionary relief is sought, however. In Phonographic Performance Ltd v Maitra Woolf MR said:[25]
[J]udgment in default is given upon the facts pleaded in the statement of claim and that affidavit evidence to supplement or support those facts is not appropriate as the pleaded facts are deemed to be admitted. However, that cannot be rigidly applied where the judge has to exercise a discretion whether to grant the relief sought. Where an injunction is sought facts relevant to the grant of that injunction, which are not deemed to be admitted, should be brought to the attention of the judge by way of affidavit or otherwise.
[25] Phonographic Performance Ltd v Maitra (644).
This approach was applied by Kenneth Martin J in Dueschen.[26]
[26] Dueschen [48].
Here, the Commissioner filed affidavits from each of the consumers referred to in the Statement of Claim. The following five affidavits were filed:
(a)Affidavit of Graham Butler sworn 13 March 2023 (the Butler Affidavit);
(b)Affidavit of Srihari Hadavayan Adya sworn 15 March 2023 (the Adya Affidavit);
(c)Affidavit of Ana Margarida Martins Faustino sworn 15 March 2023 (the Faustino Affidavit);
(d)Affidavit of Shahram Sharafi sworn 16 March 2023 (the Sharafi Affidavit); and
(e)Affidavit of Ahmad Affendy Bin Kadir sworn 17 March 2023 (the Kadir Affidavit).

The facts established on the material before the court

The material before the court establishes the following facts.

Mr Akrawy's concreting businesses

Mr Akrawy is a sole trader who carries on business providing concreting services under nine different business names, only some of which are registered:
(a)Complete Landscaping Perth;
(b)Complete Concreting Perth (unregistered);
(c) Complete Concreting WA (unregistered);
(d) Decorative concreting Solutions (unregistered);
(e) JL Expose Concreting & Landscaping (unregistered);
(f) JL Exposed Concreting & Landscaping;
(g) JL Concrete and Landscaping;
(h) JL Concreting and Landscaping; and
(i) Completely Renovated.[27]
[27] Statement of Claim, par 2.2.
Mr Akrawy is also the registrant of the website domain names:
(a) and
(b) Statement of Claim, par 2.3.

Mr Akrawy is the sole account holder of the following Bankwest bank accounts:

(a) ***-*****2-4;
(b) ***-***-*****6-3;
(c) ***-*****5-2; and
(d) ***-***-*****41.[29]

Shahram Sharafi

[29] Statement of Claim, par 2.4.

On 10 March 2017, Mr Shahram Sharafi replied to an advertisement on Gumtree advertising $75 per square metre for exposed aggregate 'special now on!' with a contact name of David.[30]
[30] Sharafi Affidavit, par 3.
On the same day Mr Sharafi was contacted by a man who introduced himself as David from Scupa Dupa Complete Concreting. Mr Sharafi made an appointment for David to come to his home to discuss the installation of artificial turf and exposed aggregate concrete.[31]
[31] Sharafi Affidavit, par 4.
On 11 March 2017, David came to Mr Sharafi's home to assess the front area where he wanted work done. Mr Sharafi asked him if David was his real name and he said his real name was Mohammed. David told Mr Sharafi he would be able to carry out concreting work on his property.[32]
[32] Sharafi Affidavit, par 5.
David sent Mr Sharafi various quotes at Mr Sharafi's request.[33]
[33] Sharafi Affidavit, pars 6 - 10.
The first quote was from Scupa Dupa Complete Concreting.[34] That quote gives the bank account details for the account as 'BSB-… ACC-…6-3'. This is one of Mr Akrawy's bank accounts.[35]
[34] Sharafi Affidavit, attachment 'SS1', page 5.
[35] Statement of Claim, par 2.4(b).
The second,[36] third,[37] and fourth[38] were from 'Complete Concreting WA'.[39] This is one of Mr Akrawy's unregistered companies.[40] The quote gave the same bank account as the first quote.
[36] Sharafi Affidavit, attachment 'SS2', pages 7 - 8.
[37] Sharafi Affidavit, attachment 'SS3', page 9.
[38] Sharafi Affidavit, attachment 'SS4', page 10.
[39] Sharafi Affidavit, attachment 'SS2', page 7.
[40] Statement of Claim, par 2.2(c).
The name on the email attaching one of the quotes was Mr Mohammed Akrawy.[41] Another was sent by Rico Charles, one of Mr Akrawy's aliases.[42] The final quote was for $10,700.[43]
[41] Sharafi Affidavit, par 8, and attachment 'SS1', page 6 (this is a different attachment to that referred to by Mr Sharafi).
[42] Sharafi Affidavit, page 8.
[43] Sharafi Affidavit, par 10.
On 13 April 2017, David told Mr Sharafi that he would do the work between 19 April to 28 April 2017.[44]
[44] Statement of Claim, par 4; Sharafi Affidavit, par 9.
On 18 April 2017, Mr Sharafi paid a deposit of $6,420 to the bank account number that was provided on the quotes.[45]
[45] Statement of Claim, par 5; Sharafi Affidavit, par 11.
On 18 April 2017 Mr Sharafi contacted David by telephone to confirm he would be coming to Mr Sharafi's home to start work on 19 April 2017. David told Mr Sharafi that he could not make it until the next day, 20 April 2017, because he had not finished a previous job.[46]
[46] Sharafi Affidavit, par 12.
On 20 April 2017, David did not attend Mr Sharafi's property.[47]
[47] Sharafi Affidavit, par 13.
On 21 April 2017, Mr Sharafi emailed David and told him he wanted a refund of the $6,420 that he had transferred to his bank account.[48]
[48] Sharafi Affidavit, par 14.
On 26 July 2017, Mr Sharafi found David's contact details on Facebook under the name 'Rico Rodriguez' and asked him to refund his deposit. David responded saying that he was trying to find a contractor who had ripped him off. He said he was selling his car and asked for one more week. Since this date Mr Sharafi has had no further communication with David.[49]

Graham Butler

[49] Sharafi Affidavit, par 16.

In early May 2017, Mr Butler found an advertisement on Gumtree from a business called 'Complete Concreting WA'.[50] As mentioned, this is one of Mr Akrawy's unregistered companies.[51]
[50] Butler Affidavit, par 3.
[51] Statement of Claim, par 2.2(c).
Mr Butler rang the telephone in the advertisement and spoke to a man who introduced himself as David Valentino. He made an appointment for David to come to his home to discuss the concreting work.[52]
[52] Butler Affidavit, par 4.
David came to Mr Butler's home and they discussed the concreting work he wanted done.[53]
[53] Butler Affidavit, par 5.
On 8 May 2017, Mr Butler received a quote via e-mail from [email protected]. The ABN on the quote was for a company called 'Scupa Dupa Pty Ltd'. The price quoted was $14,900.[54]
[54] Butler Affidavit, par 6.
On 20 May 2017, Mr Butler transferred a deposit of $1,490 to Complete Concreting WA. On the same day he received a Credit Memo from Complete Concreting WA confirming receipt of payment.[55]
[55] Butler Affidavit, par 7.
In early September 2017, Mr Butler spoke with David and told him he was ready for the concreting work to commence. The work was booked for 12 September 2017.[56]
[56] Butler Affidavit, par 8.
On 26 August 2017,[57] David requested that Mr Butler send a further 50% deposit so David could buy the materials and arrange for the machinery.[58]
[57] This is the date given by Mr Butler but it may be a typographical error.
[58] Butler Affidavit, par 9.
On 6 September 2017, Mr Butler transferred $7,450 to the bank account details on the quote. He received a Credit Memo from David confirming receipt of the $7,450 payment.[59]
[59] Butler Affidavit, par 10.
On 12 September 2017, David and some workmen came to Mr Butler's house with a bobcat. They levelled the front of the house very roughly and dug up the council footpath, leaving it in an unsafe condition. David said they would lay the concrete the following day but they did not return the following day.[60]
[60] Butler Affidavit, par 11.
On 14 September 2017, David arrived at Mr Butler's house around 2.00 pm for one hour and did some formwork at the back of the house. David told Mr Butler that he would be back tomorrow to pour concrete.[61]
[61] Butler Affidavit, par 12.
Between 15 September 2017 and 19 September 2017, David texted Mr Butler making numerous excuses for not doing the work.[62]
[62] Butler Affidavit, par 13.
On 19 September 2017, Mr Butler issued David with a notice of proposed complaint from the Building Commission requesting the job be completed, or that he be refunded $8,940.[63] This is more than the amount of $1,490 pleaded in par 10.1 of the Statement of Claim. The Commissioner submits that, despite this, I may still have regard to Mr Butler's evidence of the amount paid as the relief sought is discretionary.[64]
[63] Butler Affidavit, par 14.
[64] Commissioner's Outline of Submissions dated 15 May 2023 (Commissioner's First Submissions), par 13.
I do not accept this submission. The allegation that Mr Butler paid Mr Akrawy $8,940 is not deemed to have been admitted by Mr Akrawy's failure to enter an appearance because the Statement of Claim did not allege he paid such a sum. It was open to the Commissioner to amend the Statement of Claim to reflect Mr Butler's evidence and serve the amended Statement of Claim on Mr Akrawy but the Commissioner did not to do so. There is also no evidence before the court that Mr Butler's affidavit has been served on Mr Akrawy, so that I may be satisfied that Mr Akrawy has been notified of this new allegation.
Between 19 September 2017 and 28 September 2017, David sent Mr Butler emails repeatedly promising to do the job and then making excuses for not doing so.[65] The emails were from David Valentino.[66]
[65] Butler Affidavit, par 15.
[66] Butler Affidavit, pages 11 - 12.
On 27 September 2017 some mesh was delivered to Mr Butler's house.[67]
[67] Butler Affidavit, par 16.
On 29 September 2017, three men arrived at Mr Butler's house to pour concrete. They said that a man named Lou had contacted them on Facebook. They had never heard of David Valentino.[68]
[68] Butler Affidavit, par 17.
The same day David sent Mr Butler a text message and asked if he could pay $2,967.25 directly to 'Holcim Concrete' as David's credit card was not working. Mr Butler paid Holcim the sum of $2,967.25.[69]
[69] Butler Affidavit, par 18.
On 30 September 2017, the men returned to Mr Butler's house and laid the concrete. Once they left no other work was completed. Mr Butler has not seen David again.[70]
[70] Butler Affidavit, par 19.
Mr Butler made a complaint about David to the Building Commission and received orders for payment of $8,940. Mr Butler then commenced proceedings in the Magistrates Court.[71] He has been unable to serve David with the Magistrate's Court proceedings as he has been unable to locate an address for him.[72]

Srihari Adya

[71] Butler Affidavit, par 22.

[72] Butler Affidavit, par 23.

In July 2017, Mr Adya wanted a concrete driveway laid at the front of his home. His wife found an advertisement on Gumtree from a business called Decorative Concrete Solutions. The advertisement showed that it was based in Morley and was trading with the ABN number *********88.[73]
[73] Adya Affidavit, par 3.
Decorative Concrete Solutions is one of Mr Akrawy's unregistered companies.[74]
[74] Statement of Claim, par 2.2(d).
After viewing the advertisement, Mr Adya checked online and saw a related website which suggested that the business was genuine.[75] He saw that there was an associated person with the business named Troy.[76]
[75] Adya Affidavit, par 4.
[76] Adya Affidavit, par 5.
Mr Adya was contacted by a man who said his name was Tony and he made an appointment for Tony to discuss the concreting work he wanted.[77]
[77] Adya Affidavit, pars 6 - 7.
On 27 July 2017, Mr Adya received a quote from Rico Charles via the e-mail address '*********@******.***'. The price quoted was $6,000. The invoice was from Decorative Concreting Solutions.[78]
[78] Adya Affidavit, par 8, attachment 'SHA2', page 7.
On or about 31 July 2017, Mr Adya spoke to Tony who told him if Mr Adya paid a deposit into his account, he would arrange for the contractors to attend his home on 16 or 17 August 2017. Mr Adya paid $500 into BSB ***-***, account number *****63 the same day.[79]
[79] Adya Affidavit, pars 10 - 11.
I note that Mr Adya's affidavit evidence therefore suggests that he paid more money to Mr Akrawy than the $500 pleaded in par 15.1 of the Statement of Claim. The Commissioner did not submit that I should take this into account. In any event, I am not prepared to do so for the reasons discussed above in relation to Mr Butler.
On 11 August 2017, Mr Adya deposited a further $4,000 into the same account after being told by Tony that the contractors would need a deposit for work to commence.[80] The following day, Mr Adya received a Credit Memo from Decorative Concreting Solutions confirming receipt of that payment.[81]
[80] Adya Affidavit, par 12.
[81] Adya Affidavit, par 13.
After the contractors failed to arrive on the specified date, Mr Adya called Tony. Tony kept postponing the date on which the work would begin offering various excuses.[82]
[82] Adya Affidavit, pars 14 - 15.
Mr Adya contacted the Australian Business Register to request an ABN report relating to the ABN displayed on the business website. He discovered that that ABN *********88 relates to a business called 'Sanctuary Dwellings Pty Ltd'. Sanctuary Dwellings Pty Ltd was shown as being owned by a Ms Kathleen Armstrong and was associated with a construction company.[83] Mr Adya spoke with Ms Armstrong who said she had no association with Decorative Concreting Solutions.[84]
[83] Adya Affidavit, pars 17 - 18.
[84] Adya Affidavit, pars 19 - 20.
Mr Adya visited the advertised address of Decorative Concreting Solutions at 245 Walter Road, Morley. The address was a shopping centre in Morley unrelated to Tony's business.[85]
[85] Adya Affidavit, par 23.
Mr Adya continued to text Tony but Tony continued to give excuses and refused to refund Mr Adya's money.[86]
[86] Adya Affidavit, par 24.
Mr Adya then contacted Consumer Protection. Once Tony became aware of this, Mr Adya received an email from Rico Charles stating that he would start repayments on a regular basis in an attempt to pay him back.[87] Rico Charles is one of Mr Akrawy's aliases.[88]
[87] Adya Affidavit, par 26.
[88] Statement of Claim, par 2.1(b).

Mr Adya received two payments of $200 from a bank account with BSB ***-*** and account number *****41.[89] This is one of Mr Akrawy's bank accounts.[90]

Ahmad Kadir

[89] Adya Affidavit, par 27.

[90] Statement of Claim, par 2.4(d).

On 25 August 2017, Mr Kadir saw an advertisement on Gumtree for a business called Decorative Concreting Solutions offering to lay aggregate at a special promotional price. The contact on the advertisement was Tony and his telephone number was **** *** *50.[91] Decorative Concreting Solutions is one of Mr Akrawy's companies.[92]
[91] Adya Affidavit, par 3.
[92] Statement of Claim, par 2.2(d).
Mr Kadir rang the telephone number on the advertisement. A man answered and introduced himself as Tony. Mr Kadir made an appointment for Tony to come to his home to discuss the concreting services he needed.[93]
[93] Kadir Affidavit, par 4.
On 26 August 2017, Tony came to Mr Kadir's house. Mr Kadir and Tony discussed the concreting work Mr Kadir wanted done. Tony told Mr Kadir he would email Mr Kadir a quote.[94]
[94] Kadir Affidavit, par 5.
On 27 August 2017, Mr Kadir received a quote by e-mail from Decorative Concreting Solutions. The email was sent from [email protected]. The price quoted was $4,200.[95]
[95] Kadir Affidavit, par 6.
In late August 2017, Mr Kadir telephoned Tony and accepted the quote.[96]
[96] Kadir Affidavit, par 7.
On 1 September 2017, Mr Kadir deposited $2,520 to the bank account on the quote: BSB ***-***, account number *****63.[97] This is one of Mr Akrawy's bank accounts.[98]
[97] Kadir Affidavit, par 8.
[98] Statement of Claim, par 2.4(b).
On 29 September 2017, Tony sent Mr Kadir a text message to say he could start the job on 2 October 2017. Mr Kadir replied to Tony's text message to confirm and asked him to arrange to meet on 30 September 2017 to discuss the job and some minor changes.[99]
[99] Kadir Affidavit, par 9.
Tony did not meet Mr Kadir on 30 September 2017, answer his telephone or respond to text messages Mr Kadir sent to him.[100]
[100] Kadir Affidavit, par 10.
On 2 October 2017, Mr Kadir received a text message from Tony informing him his phone was broken. Mr Kadir arranged to meet Tony on 7 October 2017.[101]
[101] Kadir Affidavit, par 11.
Tony did not meet Mr Kadir on 7 October 2017, answer his telephone or respond to text messages Mr Kadir sent to him.[102]
[102] Kadir Affidavit, par 12.
On 9 October 2017, Mr Kadir received a text message from Tony to say he was not well and he would meet Mr Kadir later in the day. Mr Kadir was at work but his wife told him that someone did visit his house.[103]
[103] Kadir Affidavit, par 13.
On 13 October 2017, Mr Kadir received a text message from Tony saying that he could start the job on 19 October 2017.[104]
[104] Kadir Affidavit, par 15.
On 19 October 2017, no one came to Mr Kadir's house to do that work and he did not receive any responses to his telephone calls or texts.[105]
[105] Kadir Affidavit, par 16.
On 24 October 2017, Troy sent Mr Kadir a text message to say he could complete the job this week but again he did not attend.[106]

Ana Faustino

[106] Kadir Affidavit, pars 19 - 20.

On 8 November 2019, Mrs Faustino made an online enquiry to a business named JL Exposed Concreting and Landscaping for a quote to supply and install artificial turf in her front garden.[107] JL Exposed Concreting and Landscaping is one of Mr Akrawy's companies.[108]
[107] Faustino Affidavit, par 3.
[108] Statement of Claim, par 2.2(f).
On 9 November 2019, Mrs Faustino missed a call from the telephone number **** *** *05. She returned the call and a man answered who introduced himself as Cooper. Mrs Faustino made an appointment for Cooper to come to her home to provide a quote.[109]
[109] Faustino Affidavit, par 4.
On 12 November 2019, Cooper visited Mrs Faustino's house. Cooper gave a verbal quote of $3,000 to complete the works which Mrs Faustino accepted.[110]
[110] Faustino Affidavit, par 5.
On 16 November 2019, Cooper telephoned Mrs Faustino and asked her if she wanted to upgrade to a premium product for an additional $200. Mrs Faustino agreed.[111]
[111] Faustino Affidavit, par 6.
On the same day Bibra Lake Soils arrived at her house with cracker dust.[112]
[112] Faustino Affidavit, par 7.
Mrs Faustino telephoned Cooper on his mobile number. Cooper told her to pay Bibra Lake Soils and the amount would be deducted from the total of $3,200 owed.[113]
[113] Faustino Affidavit, par 8.
Bibra Lake Soils gave Mrs Faustino an invoice for $285. She paid the invoice in cash.[114]
[114] Faustino Affidavit, par 9.
Cooper arrived at Mrs Faustino's house later that day to commence work. At the end of the day Cooper said he would have to return the following day to complete the job as he did not have the necessary materials to complete the job.[115]
[115] Faustino Affidavit, par 10.
On 17 November 2019, Cooper arrived with a woman and proceeded to complete the job.[116]
[116] Faustino Affidavit, par 11.
Mrs Faustino asked Cooper for an invoice and receipt, as well as a copy of the artificial turf product warranty and information. Cooper told Mrs Faustino that he did not have them on him and he would email her everything that afternoon once he was home.[117]
[117] Faustino Affidavit, par 12.
Mrs Faustino paid $2,950 in cash to Cooper. The amount due was $2,915 (the agreed $3,200 minus $285 for delivery of the cracker dust). She did not receive any change from $2,950 because Cooper did not have any with him.[118]
[118] Faustino Affidavit, par 13.
Despite many requests, Cooper has failed to provide Mrs Faustino with a copy of the contract for the agreed works or an invoice or receipt for the $2,950 cash she gave him.[119]
[119] Faustino Affidavit, par 14.

Pecuniary penalty

The contraventions of the ACL established

The Commissioner seeks pecuniary penalties for Mr Akrawy's contraventions of s 36(4) and s 100(1) of the ACL.
Section 36(4) of the ACL provides that a person who, in trade or commerce, accepts payment for goods or services must supply all the goods or services:
(a) within the period specified by or on behalf of the person at or before the time the payment or other consideration was accepted; or
(b) if no period is specified at or before that time - within a reasonable time.
In the Statement of Claim, the Commissioner alleges that Mr Akrawy contravened s 36(4) of the ACL by failing to provide the services promised to Mr Sharafi,[120] Mr Butler,[121] Mr Adya[122] and Mr Kadir.[123]
[120] Statement of Claim, par 7.
[121] Statement of Claim, par 12.
[122] Statement of Claim, par 17.
[123] Statement of Claim, par 22.
The matters alleged in the Statement of Claim, which are deemed admitted by Mr Akrawy's failure to enter an appearance, are sufficient to establish the contraventions alleged. The contraventions are confirmed by the affidavit evidence which also sets out the circumstances of the contraventions.
It should be observed, however, that in the affidavit evidence filed by the Commissioner, none of the people who dealt with Mr Sharafi, Mr Butler, Mr Adya or Mr Kadir identified themselves as Mr Haval Akrawy.
Mr Sharafi did receive emails from a Mr Mohammed Akrawy[124] and Rico Charles.[125] Rico Charles is one of Mr Akrawy's aliases.[126] Mr Adya also says that he received emails from Rico Charles.[127]
[124] Sharafi Affidavit, par 8, and attachment 'SS1', page 6 (this is a different attachment to that referred to by Mr Sharafi).
[125] Sharafi Affidavit, page 8.
[126] Statement of Claim, par 2.1(b).
[127] Adya Affidavit, par 8, and attachment 'SHA2', page 7 and par 26.
It is possible that the person who each of Mr Sharafi, Mr Butler and Mr Kadir dealt with was Mr Akrawy using a different name. It is also possible that they dealt with someone else. Ultimately, in my view, it makes no difference.
The allegation made in the Statement of Claim (which is deemed admitted) is that Mr Akrawy entered into agreements with each of Mr Sharafi, Mr Butler, Mr Adya and Mr Kadir.[128]
[128] Statement of Claim, pars 3, 8, 13 and 18.
Each of the businesses that Mr Sharafi, Mr Butler, Mr Adya and Mr Kadir dealt with were businesses run by Mr Akrawy as a sole trader.[129] The bank accounts into which the money was paid were Mr Akrawy's bank accounts.[130] In my view, on the basis of the material before the court, that if any of Mr Sharafi, Mr Butler, Mr Adya or Mr Kadir met with anyone other than Mr Akrawy, they were an employee, or agent of Mr Akrawy.
[129] Statement of Claim, par 2.2.
[130] Statement of Claim, par 2.4.
I am satisfied that Mr Akrawy contravened s 36(4) of the ACL in the manner alleged in the Statement of Claim.
Section 100(1) of the ACL requires someone who supplies goods or services to a consumer with a total price of $75 (exclusive of GST) to give the consumer a proof of transaction as soon as practicable after the goods or services are supplied.
In the Statement of Claim, the Commissioner alleges that Mr Akrawy contravened s 100(1) of the ACL by failing to provide Mrs Faustino a proof of transaction as soon as practicable after the goods or services are supplied.[131] This allegation is deemed admitted by Mr Akrawy's failure to enter an appearance and is confirmed by the Faustino Affidavit.
[131] Statement of Claim, par 25.
As with the other contraventions, the person who Mrs Faustino dealt with did not identify himself as Mr Akrawy but in my view this makes no difference. As with the other contraventions, the allegation made in the Statement of Claim (which is deemed admitted) is that the relevant agreement was with Mr Akrawy.[132] Mrs Faustino dealt with one of Mr Akrawy's businesses, JL Exposed Concreting and Landscaping.[133]
[132] Statement of Claim, par 23.
[133] Faustino Affidavit, par 3; Statement of Claim, pars 2.2(e) - 2.2 (f).
On the basis of the material before the court, I am satisfied that Mr Akrawy contravened s 100(1) of the ACL in the manner alleged in the Statement of Claim.

Section 224

The Commissioner seeks orders that Mr Akrawy pay pecuniary penalties pursuant to s 224 of the ACL, for his contraventions of s 36(4) of the ACL and s 100(1) of the ACL.
Section 224(1)(a) of the ACL provides that if the court is satisfied that a person has contravened one of the provisions identified in s (1)(a), the court may order that person to pay such pecuniary penalty as the court determines to be appropriate in respect of each act or omission by the person.
Section 224 (1)(a)(ii) of the ACL identifies any provision of Part 3-1 of the ACL as being a provision to which s 224 applies. Section 36(4) is a provision in Part 3-1 of the ACL.
Section 224(1)(a)(vi) of the ACL identifies s 100(1) as a provision to which s 224 applies.

The principles applicable to assessing an appropriate penalty

Section 224(2) of the ACL provides that in determining the appropriate pecuniary penalty, the court must have regard to all relevant matters including:
(a) the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; and
(b) the circumstances in which the act or omission took place; and
(c) whether the person has previously been found by a court in proceedings under Chapter 4 of the ACL or this Part 5-1 of the ACL to have engaged in any similar conduct.
At the relevant time, s 224(2) of the ACL provided that the pecuniary penalty payable under s 224(1) is not to exceed, in relation to a contravention of:
(a)a provision of Part 3-1 (other than s 47(1)), if the person is a natural person, $220,000;[134]
(b)section 100(1) if the person is a natural person, $3,000.[135]
[134] Commissioner's First Submissions, par 19.
[135] Commissioner's First Submissions, par 20.
Section 224(4) provides that where conduct contravenes two or more provisions of the ACL, the court cannot impose more than one penalty in respect of the same conduct.
The Commissioner made submissions setting out the principles applicable to determining penalty by reference to the authorities.[136] The principles that emerge from the authorities are as follows.
[136] Commissioner's First Submissions, pars 22 - 31.
Unlike criminal sentences, civil penalties are imposed primarily, if not solely, for the purpose of deterrence. Neither retribution nor rehabilitation that may be considered relevant to sentencing in criminal matters have any part to play.[137]
[137] Commissioner's First Submissions, par 23; Australian Building and Construction Commissioner vPattinson[2022] HCA 13; (2022) 274 CLR 450 [15] (Pattinson); The Commonwealth of AustraliavDirector, Fair Work Building Industry Inspectorate[2015] HCA 46; (2015) 258 CLR 482 (FWBII) [55]; Re Trade Practices CommissionvCSR Ltd[1990] FCA 521; (1991) 13 ATPR 41-076 [40] - [42], 52,152 (CSR); AustralianCompetition and Consumer Commission vDataline.Net.Au Pty Ltd[2007] FCAFC 146; (2007) 161 FCR 513 [60] (Dataline Appeal).
The penalty must be sufficient to deter the defendant from further contraventions of the ACL and to deter members of the public from engaging in similar contraventions.[138]
[138] Commissioner's First Submissions, par 23; CSR, 52,152; NW Frozen Foods Pty LtdvAustralian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285 , 294 - 295 (NW Frozen Foods); DatalineAppeal [60].
In Pattinson,[139] the High Court referred with apparent approval to several factors which informed the assessment of a penalty of appropriate deterrent value under the TPA identified by French J in CSR. These were:[140]
[139] Pattinson [18].
[140] Commissioner's First Submissions, par 24; CSR [40] - [42]; 52,152 - 52,153; Referred to with approval in Pattinson [18]. See also: NW Frozen Foods.
(a)the nature and extent of the contravening conduct;
(b)the amount of loss or damage caused;
(c)the circumstances in which the conduct took place;
(d)the size of the contravening company;
(e)the degree of power the person has, as evidenced by its market share and ease of entry into the market;
(f)the deliberateness of the contravention and period over which it extended;
(g)whether the contravention arose out of the conduct of senior management of the contravener or at a lower level;
(h)whether the contravener has a corporate culture conducive to compliance, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; and
(i)whether the contravener has shown a disposition to cooperate with the authorities responsible for enforcement.
To these factors may be added:[141]
(a)the financial position of the contravener;
(b)whether the contravening conduct was systematic, deliberate or covert;
(c)the contravener's position of influence and importance in its industry sector;
(d)whether the defendant has engaged in similar conduct in the past; and
(e)the financial position of the defendant.
[141] Commissioner's First Submissions, par 24; Commissioner for Consumer ProtectionvSusilo [2014] WASC 50 [58] (Beech J) (Susilo) and authorities referred to there.
These factors are not, however, a rigid catalogue of matters.[142]
[142] Commissioner's First Submissions, par 25; Pattinson [19].
The penalty must be fixed with a view to ensuring that the penalty is not such as to be regarded by the offender or others as an acceptable cost of doing business.[143]
[143] Commissioner's First Submissions, par 28; Australian Competition and Consumer Commission vTPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 [66].
Although not universal, the common approach in the case of multiple breaches is to impose one penalty for all contraventions.[144] However, separate penalties for contravening separate provisions of the ACL are appropriate.[145]

The Commissioner's submissions

[144] Commissioner's First Submissions, par 30; Australian Competition and Consumer Commission vRural Press Ltd[2001] FCA 1065 [19]; Australian Competition and Consumer Commission vABB Transmissionand Distribution Ltd (No 2) [2002] FCA 559; (2002) 190 ALR 169 [38].

[145] Commissioner's First Submissions, par 30; Australian Competition and Consumer Commission vBirubi Art Pty Ltd (in liq) (No 3) [2019] FCA 996; (2019) 374 ALR 776.

The Commissioner made submissions about the application of these principles to the relevant circumstances.
The Commissioner submitted that the maximum penalty in respect of a contravention of s 36(4) ACL is indicative of the seriousness with which such contraventions are viewed. It was said that the purpose of the provision is to ensure that suppliers of goods accepting payment in advance, fulfill their obligations.[146]
[146] Commissioner's First Submissions, par 34.
The Commissioner submitted that each of the contraventions of s 36(4) bears remarkable similarity in that Mr Akrawy would quote on a job, accept a substantial deposit, fail to perform all or most of the services, and then become difficult or impossible to contact.[147]
[147] Commissioner's First Submissions, par 35.
The Commissioner submitted that each contravention involved sums which, in isolation are not particularly large, but were not insubstantial. The Commissioner said that consumers such as these are likely to suffer significant financial loss, as well as stress and worry, at losing these sums.[148]
[148] Commissioner's First Submissions, par 36.
The Commissioner submitted that Mr Akrawy's use of different business names and aliases supported an inference that he was attempting to protect himself from the consequences of his conduct by making it difficult for consumers to locate him.[149] It was said that Mr Akrawy's conduct was systematic.[150]
[149] Commissioner's First Submissions, par 38.
[150] Commissioner's First Submissions, pars 47 - 49.
The Commissioner said that it might also be inferred that Mr Akrawy was reckless as to his ability to complete these contracts and uninterested in providing remedies or recompense to consumers from whom he had accepted substantial sums.[151]
[151] Commissioner's First Submissions, par 39.
The Commissioner submitted that it can be inferred from the repeated nature of these breaches that there was an absence of a compliance culture.[152] The Commissioner submitted that Mr Akrawy had not cooperated with authorities[153] and that Mr Akrawy's financial position is not known.[154]
[152] Commissioner's First Submissions, par 41.
[153] Commissioner's First Submissions, pars 43 - 44.
[154] Commissioner's First Submissions, par 45.
The Commissioner referred the court to three cases that were submitted to be similar: [155]
(a)Australian Competition and Consumer Commission v Chopra.[156] In that case the respondent, an individual, admitted to four contraventions of s 36(4) of the ACL. He accepted payment totalling $4,176.44 for four transactions and failed to supply consumers within a reasonable time or in the case of three consumers within the time specified. The court ordered the respondent to pay a pecuniary penalty of $10,000 for each contravention of ACL s 36(4), totalling $40,000;
(b)Commissioner for Consumer Protection v Unleash Solar Pty Ltd (in Liq) (No 2).[157] In that case a company received a total of $7,250 from six consumers and failed to supply the goods and services in accordance with s 36(4). The sole director of the company was knowingly concerned in the contravention. The Federal Court imposed penalties of $125,000 on the company and $72,000 on the individual.
(c)Commissioner for Consumer Affairs (SA) v Goros (No 2).[158] In that case penalties were imposed on a company and its sole director for accepting payment of slightly more than $110,000 from eight consumers to remove and dispose of asbestos material in contravention of s 36(1). The court imposed penalties of $430,000 on the company and $215,000 on the director. The case had the added element of intention not to supply. The defendants had no intention of supplying the services because they knew that the material was not, in fact, contaminated.
[155] Commissioner's First Submissions, pars 50 - 52.
[156] Australian Competition and Consumer Commission v Chopra [2015] FCA 539.
[157] Commissioner for Consumer Protection v Unleash Solar Pty Ltd (in Liq) (No 2) [2016] FCA 1177.
[158] Commissioner for Consumer Affairs (SA) v Goros (No 2) [2023] SASC 1.

Although the Commissioner referred the court to these cases, the Commissioner also submitted that the variety of circumstances of conduct that attract penalties and the circumstances of that conduct mean that the penalties imposed in other cases have limited relevance.[159] It was said, however, that a consideration of penalties imposed in cases of similar contraventions may provide a 'high level broad range'.[160]
[159] Commissioner's First Submissions, par 29; Dataline Appeal [67]. See also Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 [60].
[160] Commissioner's First Submissions, par 29; Dataline Appeal [68].
The Commissioner submitted that I may have regard to her submissions regarding an appropriate penalty.[161] The Commissioner submitted that the appropriate penalties in this matter would be:[162]
(a)for the contraventions of ACL s 36(4) are total penalty in the range of $40,000 - $80,000; and
(b)for the contravention of ACL s 100(1) a penalty of $500.

The appropriate pecuniary penalty

[161] NW Frozen Foods, 291.

[162] Commissioner's First Submissions, pars 54 - 55.

The Commissioner has established four contraventions of s 36(4) of the ACL by Mr Akrawy. I agree with the Commissioner that each of those contraventions appears to be part of a similar course of conduct. Mr Akrawy would ask for a deposit, perform little if any work and then avoid his clients.
The repeated nature of the contraventions reveals a degree of systematic and deliberate conduct.
The manner in which Mr Akrawy has structured his business also suggests deliberate intent. He conducts his business through Facebook and Gumtree without any premises at which he might be located. He has used multiple companies and aliases, as well as a false ABN and street address. All of this suggests a deliberate attempt to conceal his involvement and to make him hard to find. That he would go to such lengths also suggests an appreciation that his business was not operating legitimately.
Mr Akrawy operated as a sole trader. There has been no co‑operation with authorities and there is no evidence of any compliance culture. Mr Akrawy's financial position is unknown.
The total amount that was paid to Mr Akrawy by Mr Sharafi, Mr Butler, Mr Adya and Mr Kadir pleaded in the Statement of Claim is a total of $10,930. Of that $400 was refunded.
Taking all of the relevant matters into account, I consider that an appropriate global penalty for all four contraventions of s 36(4) of the ACL would be $60,000.
This is significantly more than the evidence establishes Mr Akrawy has gained through the relevant contraventions. It is important that the amount of the pecuniary penalty be fixed at an amount sufficient to deter such conduct in the future.
In my view, different considerations arise with regard to Mr Akrawy's contravention of s 100(1) of the ACL. There is no evidence to establish a systematic pattern of not giving invoices or receipts. In the case of Mrs Faustino, the work promised was done. It does seem that Mrs Faustino did not receive change of $45.00 but the contravention established concerns Mr Akrawy's failure to provide an invoice or receipt, not a failure to give change.
In my view, an appropriate pecuniary penalty for Mr Akrawy's contravention of s 100(1) of the ACL would be $150.00.

Declaratory relief

Whether declaratory relief should be granted on default judgment

Even if the District Court has jurisdiction to grant declaratory relief in this case, the grant of such relief remains discretionary. An issue relevant to the exercise of that discretion is whether declaratory relief should be refused as a matter of discretion because this is a case in which judgment has been entered by default, rather than after argument.
The learned authors of Civil Procedure Western Australia have observed[163] that a court will not make a declaration where it is sought without proper argument, for example in default of defence. Reference is made to [47] of the High Court's decision in Bass v Permanent Trustee Co Ltd.[164]
[163] LexisNexis, Civil Procedure Western Australia, Vol 1 (at Service 177) [18.16.2].
[164] Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334, [47] 355 - 356 (Bass).
Paragraph [47] in Bass includes a quote from a judgment of Lord Goff of Chieveley in In re F (Mental Patient: Sterilisation)[165] where Lord Goff identifies various situations in which a declaration will not be granted. One situation given by Lord Goff is where the question under consideration is not a real question. Another is where the declaration is sought without proper argument and he gives where judgment is given in default of defence as an example.
[165] In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 82.
WallersteinervMoir[166] was a case in which a plaintiff by counterclaim sought a declaration that the defendant by counterclaim had been guilty of fraud. The defendant by counterclaim failed to file a defence to the counterclaim and the plaintiff by counterclaim moved for default judgment on the counterclaim. A judge entered default judgment but that decision was reversed by the Court of Appeal. Buckley LJ said:[167]
It has always been my experience and I believe it to be a practice of very long standing, that the court does not make declarations of right either on admissions or in default of pleading. A statement on this subject of respectable antiquity is to be found in Williams v. Powell [1894] W.N. 141, where Kekewich J., whose views on the practice of the Chancery Division have always been regarded with much respect, said that a declaration by the court was a judicial act, and ought not to be made on admissions of the parties or on consent, but only if the court was satisfied by evidence. If declarations ought not to be made on admissions or by consent, a fortiori they should not be made in default of defence, and a fortissimo, if I may be allowed the expression, not where the declaration is that the defendant in default of defence has acted fraudulently. Where relief is to be granted without trial, whether on admissions or by agreement or in default of pleading, and it is necessary to make clear upon what footing the relief is to be granted, the right course, in my opinion, is not to make a declaration but to state that the relief shall be upon such and such a footing without any declaration to the effect that that footing in fact reflects the legal situation.
[166] WallersteinervMoir [1974] 1 WLR 991.
[167] WallersteinervMoir (1029).
More recently, the appropriateness of granting declaratory relief where default judgment has been entered was discussed by Quinlan CJ in ACN 120 316 663 Pty Ltd (ACN 120 316 663) (In Liq)v Quach.[168] In that case the Chief Justice observed that while it is true that there may be some contexts in which it may be appropriate to grant declaratory relief where there has been no positive defence, those cases will be rare and will usually involve some public interest issue.[169] The Chief Justice referred to Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd.[170]
[168] ACN 120 316 663 Pty Ltd (ACN 120 316 663) (In Liq)v Quach [2019] WASC 126 (Quach).
[169] Quach [36].
[170] Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427; (2006) 236 ALR 665 (Dataline).
Dataline was a decision of Kiefel J (as she then was) when she was a judge in the Federal Court. In that case the Australian Competition and Consumer Commission (ACCC) sought, amongst other things, declaratory relief after obtaining judgment following a self-executing order for the non-provision of discovery. It was necessary for her Honour to consider whether declarations should be given in such circumstances. She relevantly observed:
58… Refusals to make declarations in cases of default are based upon a practice, not a rule of law. The practice is one of long‑standing and might be seen as derived from views about litigation which predate more recent concerns expressed by the courts as to the costs of unnecessary litigation, the management of cases and efficiency overall. Views expressed in older cases may not take account of the increase in the use made of declaratory orders in developing areas of law which may involve matters of public interest. …
59It may no longer be correct to have a practice which operates as a prohibition in every case of default and preferable to consider the circumstances pertaining to the particular case and the purpose and effect of the declaration. … Cases such as this, involving the protection of consumers, are of public interest. Declarations are often utilised in such cases to identify for the public what conduct contributes a contravention and to make apparent that it is considered to warrant an order recognising its seriousness. It is however important that there be no misunderstanding as to the basis upon which they are made. This could be overcome by a statement, preceding the declarations, that orders are made: 'upon admissions which [the respondent in question] is taken to have made, can upon non-compliance with orders of the court'.
The Commissioner accepted that if declarations were made in this case it would be appropriate to include a caveat like that suggested by Keifel J in this case.[171]
[171] Commissioner's Further Submissions dated 12 September 2023, pars 18 - 19.
The approach at first instance in Dataline was endorsed as entirely appropriate by the Full Court of the Federal Court in an appeal from Kefiel J's decision in the Dataline Appeal.[172] The approach has also been followed in a number of cases involving regulators and matters of public interest.[173] In Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No 3), Reeves J described the acceptance of the approach suggested by Keifel J in Dataline was 'well established'.[174]
[172] Dataline Appeal [67].
[173] For example: Australian Competition and Consumer Commission vYellow Page Marketing BV (No 2) [2011] FCA 352; (2011) 195 FCR 1 [66] - [67] (Gordon J); Hipages Group Pty LtdvReach Aussie Pty Ltd [2017] FCA 112 [66]; Australian Competition and Consumer Commission vAdata (Vic) Pty Ltd (No 3) [2015] FCA 583 [22] - [23] (Reeves J); Director of Consumer AffairsvNightingale Electrics Pty Ltd [2016] FCA 279 [2] (Pagone J).
[174] Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No 3) [22]. See also Australian Competition and Consumer Commission vEDirect Pty Ltd (in liq) [2012] FCA 976; (2012) 206 FCR 160 [23].
In my view, it is appropriate that I follow the approach outlined by Keifel J in Dataline and endorsed in the subsequent authorities. The mere fact that the Commissioner has obtained default judgment does not preclude the grant of declaratory relief.
The grant of declaratory relief remains discretionary. With regard to broader discretionary considerations where declaratory relief is sought in regulatory matters, in Susilo Beech J observed:
42 The lack of a contest may bear upon whether there is utility in the making of a declaration. A declaration should only be made if it has a utility beyond simply 'recording in a summary form, conclusions reached by the court in reasons for judgment'.
43 That utility may be found in the setting out of the basis of the liability found and the penalties or injunctions imposed. Declarations may also be appropriate because they may:
(a) be an appropriate vehicle to record the court's disapproval of the contravening conduct;
(b) serve to vindicate the regulator's claim that the defendant contravened legislation;
(c) be of assistance to the regulator in carrying out its duties;
(d)inform consumers of the dangers arising from the defendant's contravening conduct; and
(e) deter others from contravening the legislation.
In my view, taking these considerations into account, it would be appropriate to grant the declaratory relief sought in relation to Mr Akrawy's contraventions of s 36(4) of the ACL.
I am not inclined, however, to make the declaration sought in relation to Mr Akrawy's contravention of s 100(1) of the ACL. I consider that Mr Akrawy's single contravention of s 100(1) is of a different kind and nature to his repeated and systematic contraventions of s 36(4). I consider that the pecuniary penalty I have imposed in relation to Mr Akrawy's contravention of s 100(1) is sufficient to mark the court's disapproval of this aspect of his conduct. I do not consider that a declaration in addition is necessary.
I will also order that Mr Akrawy pay the Commissioner's costs of these proceedings.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
FN
Associate to Judge Palmer
22 SEPTEMBER 2023