COMMISSIONER OF FAIR TRADING v MOLI

[2014] FCCA 1844

FEDERAL CIRCUIT COURT OF AUSTRALIA

COMMISSIONER OF FAIR TRADING v MOLI [2014] FCCA 1844

Catchwords:
CONSUMER LAW – Application for injunctive relief pursuant to s.232 of the Australian Consumer Law – where respondent contravened provisions of Australian Consumer Law relating to negotiating unsolicited consumer agreements – where respondent convicted of offences relating to relevant conduct – declarations and injunctions ordered.

Legislation:  

Competition and Consumer Act2010, ss.138A, 151(m), 170(1)(b), 171(1), 173(1), 175(1)(b), 175(1)(c), 232
Competition and Consumer Regulations 2010, reg.82
Fair Trading Act 1989(Qld)
Federal Circuit Court of Australia Act 1999, s.16

Director of Consumer Affairs Victoria v Dimmeys Stores Pty Ltd [2013] 308 ALR 296
Director of Consumer Affairs Victoria v Dimmeys Stores Pty Ltd [2013] 213 FCR 559

Applicant: COMMISSIONER OF FAIR TRADING

Respondent: ELEVISI MOLI

File Number: BRG 497 of 2014

Judgment of: Judge Jarrett

Hearing date: 28 July 2014

Date of Last Submission: 28 July 2014

Delivered at: Brisbane

Delivered on: 28 July 2014

REPRESENTATION

Counsel for the Applicant: Mr E.J. Morzone

Solicitors for the Applicant: Crown Law

Solicitors for the Respondent: No Appearance

ORDERS

THE COURT DECLARES that the Respondent has engaged in conduct in contravention of each of ss 170(1)(b), 171(1), 173(1), 175(1)(b) and (c) and 151(m) of the Australian Consumer Law (“ACL”) contained in Schedule 2 of the Competition and Consumer Act 2010 (CCA).

THE COURT ORDERS THAT:

1. The Respondent, his servants or agents be restrained from engaging in the following conduct in contravention of the ACL:

   (a)(in contravention of section 170(1)) calling on a person for the purpose of negotiating an unsolicited consumer agreement or for an incidental or related purpose:

   (i)at any time on a Sunday or a public holiday; or

   (ii)before 9:00am on any other day;

   (iii)after 6:00pm on any other day (or after 5:00pm if the other day is a Saturday).

   (b)(in contravention of section 171(1)) calling on a person for the purpose of negotiating an unsolicited consumer agreement or for an incidental or related purpose and not as soon as practicable and in any event before starting to negotiate:

   (i)clearly advising the person that the respondent’s purpose is to seek the person’s agreement to a supply of the goods or services concerned; and

   (ii)clearly advising the person that the respondent is obliged to leave the premises immediately on request; and

   (iii)providing to the person such information relating to the respondent’s identity.

   (c)(in contravention of section 173(1)) making an unsolicited consumer agreement with a person and:

   (i)before the agreement is made, not giving to the person information as to the following:

   A.the person’s right to terminate the agreement during the termination period;

   B.the way in which the person may exercise that right; or

   (ii)not giving the information in writing;

   (d)(in contravention of section 175(1)(b)) making a consumer agreement that does not comply with the following requirements:

   (i)to include on its front page a notice that:

   A.conspicuously and prominently informs the consumer of the consumer’s right to terminate the agreement; and

   B.conspicuously and prominently sets out any other information prescribed by regulations made for the purpose of section 79(b)(ii);

   (e)(in contravention of section 175(1)(c)) making a consumer agreement that is not accompanied by a notice that may be used by the consumer to terminate the agreement;

   (f)(in contravention of section 151(m)) in the supply of services making a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee right or remedy.

2. The Respondent pay the Applicant’s costs of and incidental to the application fixed in the amount of $7,827.50.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRG 497 of 2014

COMMISSIONER OF FAIR TRADING

Applicant

And

ELEVISI MOLI

Respondent

REASONS FOR JUDGMENT

Ex tempore

1. This is an application by the Commissioner of Fair Trading (Queensland) for certain declarations and injunctions against Elevisi Moli.  The applicant administers the provisions of the Fair Trading Act 1989 (Qld) including the application within the State of Queensland of the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act2010 (Cth).

2. The applicant seeks declaratory and injunctive relief against the respondent in respect of conduct which, it is said, offends Part 4.2 of Chapter 4 of the Australian Consumer Law.

3. The Court has jurisdiction to hear and determine these proceedings, and power to make the declarations and orders sought, pursuant to:

   a)s.16 of the Federal Circuit Court of Australia Act1999;

   b)s.138A of the Competition and Consumer Act; and

   c)s.232 of the Australian Consumer Law.

4. I am satisfied that the applicant here has standing to bring these proceedings and to pursue the relief that is sought in them.  As to the position of a person such as the present applicant to commence and prosecute proceedings such as these, I was taken to Director of Consumer Affairs Victoria v Dimmeys Stores Pty Ltd [2013] 308 ALR 296 – a judgment of Marshall J in the Federal Court of Australia. Whilst that decision is of some benefit, his Honour’s earlier decision in Director of Consumer Affairs Victoria v Dimmeys Stores Pty Ltd [2013] 213 FCR 559 sets out more fulsomely the basis upon which a person in the position of the present applicant might bring proceedings such as these. I am satisfied the applicant has standing to commence and prosecute these proceedings.

5. These proceedings arise out of the respondent’s actions as a “tree lopper”.  The material before me reveals that he, in company with others, canvassed people in their homes for the purposes of having those people engage him to do tree lopping work and other gardening type activities at their homes.

6. The proceedings in this case centre on his activities in respect of two people:  Margaret Patricia Fortune and Jessie Myers.  They are described in both the application – the grounds of the application – and the written submissions as retired elderly women.  

7. In respect of Ms Fortune, the evidence demonstrates that she was home early on the morning of Thursday, 14 June, 2012 when at about 8:30am a man knocked on the side door of her house.  She described him as an affable man.  She had had a late night the night before and he caught her somewhat by surprise.  She was very tired, still in her sleeping attire and “had not even had a cup of tea”.

8. He talked to her about having some work done to the trees on her property.  He offered her a price for the work that he suggested needed doing.  He started by saying that it would ordinarily cost $15,000 for the work that they were talking about but he would do it for her for $8,000.  He left a business card with Ms Fortune and said he would be back in 10 minutes or so.  On the back of the card he wrote “2 dead trees knock down”.

9. When he left, Ms Fortune quickly showered.  Mr Moli was back within ten minutes.

10. When he returned, Ms Fortune talked to Mr Moli about a gum tree on her property between her house and that of her neighbour, an Ms Kief.  Mr Moli added to the words already written by him on the back of his business card the following words: “Gum Tree Trim back.  Also “remove gum tree rubbish”.  He wrote a dollar figure on the card but then scribbled it out.

11. Ms Fortune asked for a “proper” quote and Mr Moli obliged by asking her for some paper.  She gave him a torn sheet of A4 paper to write on.  He then wrote the following on it:

    1. Dead Tree cut down

    2. 1 Gum Tree trim back to safety size

    3. Remove all rubbish of Gum Tree.

12. He then wrote the figure of $8,300.  Ms Fortune and Mr Moli signed the paper and he dated it.  There was then some discussion about mulching and the cost to Ms Fortune to retain some mulch. 

13. The work commenced.  During the performance of the work, Ms Fortune asked Mr Moli if he was insured, to which he replied: “Yes, of course.”

14. The work was completed later that day, except for some cleaning up and the mulching of the mulchable material.  The mulcher organised by Mr Moli had broken down.  Ms Fortune paid Mr Moli $8,000 in cash.

15. There is an affidavit from Ms Fortune’s neighbour, Ms Kief filed on 30 May, 2014.  She gave evidence that she had her attention attracted by the work that was being carried out on Ms Fortune’s premises next door.  She approached one of the men and ultimately talked to Mr Moli.  She knew that was who he was because he had that printed on his t-shirt.  On the back of his shirt was printed “All Queensland Tree Service” and “Fully Insured”.  He told her that the work he was doing for Ms Fortune was costing $15,000, but that he had given Ms Fortune a pensioner discount to $8,000.

16. There was then a discussion between Ms Kief and Mr Moli about she too securing some mulch for her garden.  She describes in her affidavit some further interaction between she and Mr Moli and his workers, which I need not detail. 

17. Mr Moli returned the next day, but was unable to secure a mulcher.  He refunded Ms Kief the money she had given him.  He had an argument with Ms Fortune about the amount to be refunded to her.  That issue was ultimately resolved after Ms Fortune and Ms Kief both mentioned the possible intervention of the Office of Fair Trading.

18. The material sets out that both Ms Fortune and Ms Kief were unhappy with the way in which the premises were left after the work had been carried out. 

19. I also have an affidavit from Ms Jessie Meers.  Her evidence is that at or about 9:30am on Tuesday, 3 July 2012, she was at home speaking to her son on the telephone and a man came down her driveway.  She met him at the front door.  He told her that they were tree loppers working in the area and asked if there was some work that she needed to be done.  She said that she did.  He said his boss would come back.  The man left.

20. Soon, another man arrived and asked Ms Meers what work she needed done.  She took the opportunity to have the man assess some work that she wanted done.  He gave her a price for that work of $3,800.  Ms Meers said that she thought that was a lot of money, but the man told her that normally it would cost $4,500.

21. Ms Meers was given nothing in writing – no quote or agreement.  The work commenced almost immediately and Ms Meers was required to pay on the day, although she could pay by cheque.

22. The work was carried out.  But there was a discussion later in the day between Ms Meer’s neighbour, a man described in her affidavit as Gordon Sherriff and her son-in-law, Roger as a result of which two things happened:  the first was that the price was renegotiated to $2,000; the second was that the police arrived. 

23. The work was completed.  Ms Meers paid Mr Moli $2,000 and she was satisfied with the work that was done.

24. Out of those events these proceedings arise. 

25. There is an affidavit of Diane Marie Grist before me.  Ms Grist is a Senior Compliance Officer employed by the Office of Fair Trading, Department of Justice and Attorney General.  She has been aware of the respondent for some time now and since at least late 2008 the Office of Fair Trading has from time-to-time received complaints from consumers about the respondent. 

26. Ms Grist’s evidence reveals that in April, 2011 the respondent pleaded guilty to a number of offences arising under the Fair Trading Act (Qld) 1989 that were committed in September, 2010. Those offences are described in the “verdict and Judgment Record” annexed to Ms Grist’s affidavit as follows:

    1   Failing to comply with the requirements of prescribed contract;

    2   Accepting money before cooling off period expires;

    3   Supply services before expiration of cooling off period;

    4   Fail to produce ID card to a customer.

27. On the same day he pleaded guilty to four other offences committed in April, 2010 and four other offences committed in May, 2010.  The offences on each occasion were identical to those set out earlier.

28. Mr Moli was convicted of the offences and ordered to pay a total amount of $19,875.80, comprising a fine of $2,000, an amount for costs and some amounts for compensation.

29. In respect of the present matter involving Ms Fortune and Ms Meers, there is evidence that the respondent has been convicted of offences in relation to his conduct on those days.  

30. The evidence reveals that the respondent is aware of today’s proceedings.  He has been served with them regularly.  There is no reason to think that his non-appearance today is for any reason other than unwillingness to attend. 

31. I am satisfied that Ms Myers and Ms Fortune were consumers for the purposes of the Australian Consumer Law. I am satisfied that the respondent was a dealer and a supplier within the meaning of those words as used in the Australian Consumer Law.

32. I am satisfied, having regard to the evidence which I have briefly summarised in these reasons, that the respondent has committed a number of offences against the Australian Consumer Law. In particular he has:

    a)in contravention of s.170(1)(b) called upon Mrs Fortune at a time before 9:00am on a day not being a Saturday, a Sunday or public holiday;

    b)in contravention of s.171(1) failed, before he started to negotiate with each of Ms Fortune and Ms Meers:

    i)to advise them that he was obliged to leave the premises immediately upon request;

    ii)to provide to them information relating to his identity as prescribed by reg. 82 of the Competition and Consumer Regulations 2010;

    c)in contravention of s.173(1) did not as soon as practicable, and in any event before starting to negotiate, give to each of them information in writing as to their right to terminate the agreement during the termination period and the way in which they could exercise that right;

    d)in contravention of s.175(1)(b) and (c) acted as a supplier under an unsolicited consumer agreement without an agreement document that included on its front page a notice that conspicuously and prominently informed each of Mrs Fortune and Mrs Meers of their right to terminate the agreement and was accompanied by a notice that may be used to terminate the agreement; and

    e)in contravention of s.15l(m) in trade or commerce and in connection with the supply of services made a false and misleading representation in that on the business cards provided to each of Mrs Fortune and Mrs Meers it was represented that the respondent was “fully insured” when he was not.

33. In the circumstances and having regard, especially to the affidavit of Andrew Mortimer filed this morning by leave, it is necessary, it seems, to grant an injunction under the Australian Consumer Law that prohibits the respondent from continuing to engage in the offensive conduct.

ORDERS PRONOUNCED

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  15 August 2014