Commissioner for Consumer Protection v Jorissen
[2014] WASC 291
•22 AUGUST 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: COMMISSIONER FOR CONSUMER PROTECTION -v- JORISSEN [2014] WASC 291
CORAM: COMMISSIONER SLEIGHT
HEARD: 7 MAY 2014 & 7 AUGUST 2014
DELIVERED : 7 AUGUST 2014
PUBLISHED : 22 AUGUST 2014
FILE NO/S: CIV 2696 of 2013
BETWEEN: COMMISSIONER FOR CONSUMER PROTECTION
Plaintiff
AND
GERARDUS JOHANNES HERMANUS JORISSEN
Defendant
Catchwords:
Consumer protection - Enforceable undertaking given to regulator - Application by regulator for declarations of breach of undertaking and enforcement orders - Minute of consent orders - Whether declarations should be made as per minute of consent orders
Legislation:
Australian Consumer Law (WA), s 218
Result:
Declarations and enforcement orders made
Category: B
Representation:
Counsel:
Plaintiff: Mr M G S Crowley
Defendant: Mr M Cuomo
Solicitors:
Plaintiff: Department of Commerce
Defendant: Legal Aid (WA)
Case(s) referred to in judgment(s):
Australian Competition & Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56 [3]; (2012) 201 FCR 378
Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730
Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695
Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570 603
Re F (Mental Patient, Sterilisation) [1989] All ER 545; [1990] 2 AC 1
Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53
The Commissioner for consumer Protection v Armstrong [2012] WASC 206 (S)
COMMISSIONER SLEIGHT:
Introduction
The Commissioner for Consumer Protection, the plaintiff in this matter, applies for declarations of breaches of a written undertaking given by the defendant Mr Jorissen under s 218 of the Australian Consumer Law (WA) (the ACL) and injunctive orders requiring Mr Jorissen to comply with these written undertakings. The parties have filed a minute of consent orders and, subject to some small amendments to which the parties have agreed, I am prepared to make orders in terms of the amended minute. My reasons for making orders in terms of the amended minute of consent orders are set out below.
Background
Mr Jorissen says that he invested $1 million USD overseas in 1982 and that he needs to pay various fees in order to have the funds expatriated to Australia. In order to raise funds to pay the expatriation fees, Mr Jorissen approached various persons to make an investment with him. The investors were offered a 20% return on their investment, with payment to be made 'immediately once funds are cleared by the British government, Ministry of Justice Office London and the Australian Foreign Exchange Bureau' [(emphasis added)??]. Mr Jorissen provided to those persons who invested with him an investment certificate.
The Department of Commerce (Consumer Protection Division) (the Department) received complaints concerning Mr Jorissen's activities of seeking to solicit funds to pay expatriation fees related to his supposed overseas investment. The Department formed the view that Mr Jorissen was the victim of a scam and that he was seeking investments from third parties to pay the scammers. The Department further took the view that Mr Jorissen, breached various provisions of the ACL, including making misleading representations, contrary to s 18 of the ACL, and accepting payment for services without a reasonable basis to believe that the services could be provided within a reasonable time contrary to s 34 of the ACL.
The Department intended to publish a media statement warning the public of the investment scheme being promoted by Mr Jorissen. Before publishing the media statement, representatives of the Department met with Mr Jorissen and his wife. It was explained to Mr Jorissen and his wife that the Department believed that they had been victims of an overseas investment scam. They were advised that instead of a public warning being published, the Department was prepared to accept a written undertaking by them to stop soliciting and accepting money from third parties to forward overseas for the purposes of trying to recover their overseas investment. The written undertaking was to be pursuant to s 218 of the ACL. Mr and Mrs Jorissen gave such a written undertaking on 21 June 2014. The undertaking was in the following terms:
1.Mr and Mrs Jorissen undertake not to solicit or accept funds from any third party for the purpose of furthering the Scheme.
2.Mr and Mrs Jorissen undertake not to solicit or accept funds from any third party for the purpose of any investment by which funds are to be supplied for the purpose, or purported purpose, or any related purpose, of furthering the Scheme or any other purpose purportedly required or related to the clearance of funds said to be held to the account of Mr or Mrs Jorissen situated overseas.
3.Mr and Mrs Jorissen undertake not to apply any funds actually obtained from third parties for the purpose, or purported purpose, or any related purpose, or effectuating the release of funds said to be held to the account of Mr or Mrs Jorissen overseas.
The Scheme was defined in a recital to the undertaking in the following terms:
Mr and Mrs Jorissen are of the belief that the expatriation of funds require the payment by Mr Jorissen of various sums of money to the person by Western Union transfer for the purported purpose of releasing the funds to Mr Jorissen, and by obtaining various permissions said to be a requirement of United Kingdom or European law in order to effectuate the clearance of funds (the Scheme).
Legal framework
Section 218 of the ACL provides as follows:
218Regulator may accept undertakings
(1)The regulator may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the regulator has a power or function under this Schedule.
(2)The person may, with the consent of the regulator, withdraw or vary the undertaking at any time.
(3)If the regulator considers that the person who gave the undertaking has breached any of its terms, the regulator may apply to a court for an order under subsection (4).
(4)If the court is satisfied that the person has breached a term of the undertaking, the court may make all or any of the following orders:
(a)an order directing the person to comply with that term of the undertaking;
(b)an order directing the person to pay to the Commonwealth, or to a State or Territory, an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;
(c)any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;
(d)any other order that the court considers appropriate.
The Supreme Court has power to make declaratory orders. Section 25(6) of the Supreme Court Act 1935 (WA) provides as follows:
No action shall be open to objection on the ground that a merely declaratory judgment is sought thereby, and it shall be lawful for the Court to make binding declarations of right without granting consequential relief.
Order 18 r 16 of the Rules of the Supreme Court 1971 (WA) (the RSC) provide as follows:
16.Declaratory judgment
No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed.
Order 43 r 16 of the RSC provides that parties to a proceeding may file a written consent to the making of an order in those proceedings and upon the written consent being filed, orders may be made. The rule provides as follows:
16.Consent orders
(1)The parties to proceedings or their practitioners may file a written consent to the making of an order in those proceedings, other than an order that amends, cancels or is inconsistent with an interlocutory order made by a case manager under Order 4A.
(2)Upon the written consent being filed, the registrar may settle, sign and seal the order without any other application being made in any case in which in his opinion the Court would make such an order upon consent of the parties or may bring the matter before the Court which may, if it thinks fit and without any other application being made, direct the registrar to settle, sign, and seal the order in accordance with the terms of consent.
(3)The order shall state that it is made by consent and shall be of the same force and validity as if it had been made after a hearing by the Court. With the
Conclusion
By virtue of s 218(4) of the ACL, the power of the court to make injunctive orders requiring a person to comply with a written undertaking is conditional on the court being satisfied that a breach has occurred of a written undertaking made under the section.
The fact that the parties enter into consent orders neither confers power to make the same orders or bind the court in the way in which a discretion is to be exercised: Australian Competition & Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56 [3]; (2012) 201 FCR 378.
In Australia it is well recognised that the court's power to make a declaratory judgment must fulfil the requirements of there being a justiciable controversy, as otherwise the court would not be performing a judicial function: see Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570 603; Seaman, Civil Procedure Western Australia [18.16.1] (5272). Accordingly, the application for declaratory relief must raise a real and not a theoretical question; the person raising it must have a real interest to raise it; and he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought: Re F (Mental Patient, Sterilisation) [1989] All ER 545; [1990] 2 AC 1 (per Lord Goff of Chieveley).
The fact that the application for declarations is not opposed does not mean that there is a lack of a proper contradictor: Australian Competition & Consumer Commission v MSY Technology Pty Ltd. The requirement of a proper contradictor is satisfied when a party with an interest in contradicting the claim is joined as a defendant. The lack of contest may bear thereupon whether there is utility in the making of the declaration: The Commissioner for consumer Protection v Armstrong [2012] WASC 206 (S) [12].
The requirement that the declaratory orders sought must raise a real issue means that there must be some utility in the granting of declaratory relief. In Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 [95], Gummow, Hayne and Heydon JJ saw that the utility may exist in setting out the basis of the liability found and the basis for the penalties or orders imposed (see also Commission v MSY Technology Pty Ltd; Australian Competition & Consumer Commission v Armstrong [14].
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 (or here, his enforceable undertaking);
(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.
See Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695 [49]; Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730 [6]; Australian Competition & Consumer Commission v Armstrong [14].
The plaintiff has filed a number of affidavits in support of the orders sought in this matter. The plaintiff has also filed written submissions. Mr Jorissen's solicitors have indicated in an email to my associate they do not intend to file any written submissions, and simply adopt the submissions filed by the plaintiff's solicitors.
Having read the affidavit material by the plaintiff and the plaintiff’s submissions:
(a)I am satisfied that the Commissioner, as the regulator, accepted a written undertaking by Mr Jorissen dated 21 June 2013 for the purpose of s 218 in connection with the matter in relation to which the regulator has a power or function under the ACL.
(b)I am satisfied that Mr Jorissen has breached the written undertaking in the manner described in the declarations that the parties have agreed should be made. In view of the consent orders, I do not propose to detail the affidavit material, but simply confirm that I have read the material and agree that it establishes the breaches. I am satisfied there is a utility in making declarations as per the consent orders so as to set out the details of the breaches which form the basis of the liability for making orders against Mr Jorissen. The breaches as per the declaratory orders sought are as follows:
1.On 24 June 2013 the Plaintiff, the Commissioner for Consumer Protection in Western Australia (Commissioner), accepted from the Defendant Gerardus 'Gerry' Johannes Hermanus Jorissen, and from Anne Jorissen, an enforceable undertaking under section 218 of the Australian Consumer Law (WA) by which the Defendant and Anne Jorissen undertook:
1.1Not to solicit or accept funds from any person;
1.2Not to apply any funds actually obtained;
for the purpose of purported purpose of satisfying a range of purported fees and charges the payment of which was said to be necessary to enable the repatriation to [Mr Jorissen] of the equivalent of $1M USD or in any event a substantial sum of money allegedly standing to the account of [Mr Jorissen] in foreign bank account(s);
2.[Mr Jorissen] breached the enforceable undertaking by:
Solicitation or acceptance of funds for purported repatriation
(Mr Bruce McLagan)
2.1Writing to Bruce William McLagan on or shortly after 27 June 2013 requesting Mr McLagan to contribute additional funds up to $11,180 AUD; and
2.2Orally requesting Mr McLagan in person on 28 June 2013 to contribute an additional $11,000 AUD; and
2.3Orally requesting Mr McLagan by telephone on 11 July to contribute an additional $7,500 AUD; and
(Mr Edward McVee)
2.4Writing to Edward Martin McVee on or shortly after 27 June 2013 requesting Mr McVee to contribute additional funds up to $11,180 AUD; and
(Mr Leslie Panting)
2.5Writing to Leslie Alan Panting on 21 August 2013 requesting Mr Panting to contribute unspecified additional funds to meet purported 'demurrage' and other fees and charges; and
2.6Writing to Mr Panting again on 21 August 2013 requesting Mr Panting to contribute additional funds up to $6,940 by 27 August 2013; and
2.7Writing to Mr Panting on 23 August 2013 repeating the requests of 21 August 2013 that Mr Panting contribute additional funds up to $6,940 by 27 August 2013; and
2.8Writing to Mr Panting on 21 October 2013 requesting Mr Panting contribute at least $3,000 in additional funds; and
Application of funds for purported repatriation of funds
2.9Causing on 26 July 2013 £6,850 GBP to be transferred to an account held in the United Kingdom in the name of 'Kenjul Concepts', through his agent Dante Edward Philip Cova from an ANZ account in the names of Dante Edward Cova & Alexandria Elizabeth Cova; and
2.10Causing on 12 August 2013 £4,000 GBP to be transferred to an account held in the United Kingdom in the name of 'Anthony O Ltd' from an ANZ account in [Mr Jorissen]'s and Anne Jorissen's joint name;
for the purpose or purported purpose of satisfying a range of purported fees and charges the payment of which was said to be necessary to enable the repatriation to [Mr Jorissen] of the equivalent of $1M USD or in any event a substantial sum of money allegedly standing to the account of [Mr Jorissen] in a foreign bank account(s).
(c)Having been satisfied that the breaches have occurred as outlined above, I am prepared to make orders under s 218(4)(a) of the ACL in terms of the amended minute of consent orders as follows:
3.MR JORISSEN is directed pursuant to paragraph 218(4)(a) of the Australian Consumer Law (WA) to comply with the following clauses of the enforceable undertaking of 24 June 2013:
3.1Clause 1, which relevantly states:
'Mr Jorissen … undertake[s] not to solicit or accept funds from any third party for the purpose of furthering [a scheme by which the payment of certain fees and charges are said to be required to expatriate substantial funds to Mr Jorissen held in accounts overseas (the 'Scheme')].'
3.2Clause 2, which relevantly states:
'Mr … Jorissen undertake[s] not to solicit or accept funds from any third party for the purpose of any investment by which funds are to be applied for the purpose, or purported purpose, or any related purpose, of furthering the Scheme or any other purpose purportedly required or related to the clearance of funds said to be held to the account of Mr … Jorissen situated overseas.'
3.3Clause 3, which relevantly states:
'Mr Jorissen … undertake[s] not to apply any funds actually obtained from third parties for the purpose, or purported purpose, or any related purpose, of effectuating the release of funds said to be held to the account of Mr or Mrs Jorissen overseas.'
Accordingly, I make by consent the declaratory orders and compliance orders under s 218(4) of the ACL as set out above.
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