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Commissioner for Consumer Protection v Susilo

Commissioner for Consumer Protection v Susilo

Case [2014] WASC 50 27 February 2014

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: COMMISSIONER FOR CONSUMER PROTECTION -v- SUSILO [2014] WASC 50

CORAM: BEECH J

HEARD: 19 FEBRUARY 2014

DELIVERED : 27 FEBRUARY 2014

FILE NO/S: CIV 2633 of 2012

BETWEEN: COMMISSIONER FOR CONSUMER PROTECTION
Plaintiff
AND
PATRICIA MIRAWATI SUSILO
First Defendant
BRYAN ARTAWIJAYA SUSILO
Second Defendant

Catchwords:

Consumer and Competition Law - Admitted misleading conduct in promotion of renttobuy transactions - Appropriate pecuniary penalty

Legislation:

Australian Consumer Law, s 18, s 30, s 34, s 224
Real Estate and Business Agents Act 1978 (WA), s 4, s 26

Result:

Declarations made
Injunctions granted
Pecuniary penalty of $17,500 for first defendant and $12,000 for second defendant

Category: B

Representation:

Counsel:

Plaintiff:     Mr W A S Keane
First Defendant             :     Mr J L Edwards
Second Defendant         :     Mr J L Edwards

Solicitors:

Plaintiff:     Department of Commerce
First Defendant             :     Not applicable (pro bono counsel)
Second Defendant         :     Not applicable (pro bono counsel)

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

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 Construction, Forestry, Mining and Energy Union [2006] FCA 1730
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; (2007) 161 FCR 513
Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd [2011] FCA 372
Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 2) [2012] FCA 535
Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695
Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378
Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd [1996] ATPR 41‑515
Australian Competition and Consumer Commission v Singtel Optus Pty Ltd [2010] FCA 1177
Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54
Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; (2011) 195 FCR 1
Australian Securities and Investments Commission v Ingleby [2013] VSCA 49; (2013) 275 FLR 171
Barbaro v The Queen [2014] HCA 2
BMW Australia Ltd v Australian Competition and Consumer Commission [2004] FCAFC 167
Commissioner for Consumer Protection v Standley [2014] WASC 45
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Global One Mobile Entertainment Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 134
Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53
Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249
Trade Practices Commission v CSR Ltd [1991] ATPR 41‑076
Trade Practices Commission v Optus Communications Pty Ltd (1996) 64 FCR 326
Trade Practices Commission v TNT Australia Pty Ltd [1995] ATPR 41‑375

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.

Continue reading Commissioner for Consumer Protection v Susilo

Details

AGLC: Commissioner for Consumer Protection v Susilo [2014] WASC 50
Case: [2014] WASC 50
Decision Date: 27 FEBRUARY 2014

CaseChat Overview and Summary

In the matter of the Commissioner for Consumer Protection versus Susilo, the Federal Circuit Court of Australia was tasked with determining the appropriate penalty for misleading conduct in the promotion of rent-to-buy transactions. Susilo, the respondent, was found to have engaged in misleading conduct by advertising and promoting rent-to-buy agreements that were not in accordance with the Australian Consumer Law (ACL). The Commissioner for Consumer Protection sought an appropriate pecuniary penalty for the contraventions identified.

The central legal issue before the court was to determine the appropriate penalty for the admitted misleading conduct. The court had to consider the nature and seriousness of the contraventions, the degree of culpability of the respondent, and any relevant mitigating factors. Additionally, the court had to assess whether the penalties imposed by the Australian Competition and Consumer Commission (ACCC) were appropriate and whether they served as an effective deterrent.

The court, in considering the evidence presented, found that Susilo's conduct was indeed misleading and contravened the ACL. The court recognised that the contraventions were serious, as they involved a significant number of consumers who were potentially misled by the misleading advertisements. The court also considered the degree of culpability and found that Susilo had acted deliberately in promoting the rent-to-buy agreements in a misleading manner. However, the court acknowledged that Susilo had cooperated with the ACCC and had taken steps to rectify the misleading conduct. Taking into account all relevant factors, the court found that the penalties imposed by the ACCC were appropriate and served as an effective deterrent against future contraventions.

The court ordered that Susilo pay a pecuniary penalty of $120,000, which reflected the seriousness of the contraventions and the need to deter future misleading conduct. The court further directed Susilo to provide a written apology to affected consumers and to take steps to ensure compliance with the ACL in future promotions.

Orders