FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Lux Pty Ltd

[2004] FCA 926

TRADE PRACTICES – sale of vacuum cleaner to consumer – sale conducted by agent of corporation - consumer alleged to be illiterate and intellectually disabled – circumstances of sale said to involve unconscionable conduct, undue harassment and coercion – whether intellectual disability established – unconscionability established – undue harassment and coercion not established – form of relief – need for further submissions on relief

Federal Court of Australia Act 1976 (Cth) s 21

Trade Practices Act 1974 (Cth) ss 4(2), 51AB, 51AB(1), 51AB(2), 51AB(2)(a), 51AB(2)(c), 51AB(2)(d), 51AB(2)(e), 51AB(5), 60, 80, 80(1)(e), 80(4), 80(5), 83, 84(2), 87(1A)(b)

New Shorter Oxford English Dictionary  (Clarendon Press, Oxford, 1993)

Australian Competition & Consumer Commission v 4WD Systems Pty Ltd  (2003) 200 ALR 491 cited

Australian Competition & Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472 considered

Australian Competition & Consumer Commission v McCaskey (2000) 104 FCR 8 considered

Australian Competition & Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 95 FCR 114 cited

Australian Competition & Consumer Commission v Samton Holdings Pty Ltd (2002) 117 FCR 301 considered

Australian Competition & Consumer Commission v Simply No-Knead (Franchising) Pty Ltd (2000) 104 FCR 253 considered

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 considered

Hospitals Contribution Fund of Australia Ltd v Switzerland Australia Health Fund Pty Ltd (1987) 78 ALR 483 cited

Hurley v McDonald’s Australia Ltd (2000) ATPR 41-741 considered, applied

Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 considered

Qantas Airways Ltd v Cameron (1996) 66 FCR 246 considered

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v LUX PTY LTD and DENNIS PODGER

W124 of 2000

RD NICHOLSON J

16 JULY 2004

PERTH

THE COURT DECLARES THAT:

1.         The first respondent, in connection with the supply of a vacuum cleaner to Janice Standing on 26 August 1999, engaged in unconscionable conduct in contravention of s 51AB of the Trade Practices Act 1974 (Cth)(‘the Act’).

2.         The second respondent in engaging in the conduct found by the Court in these reasons has been directly knowingly concerned in and a party to the contravention of s 51AB of the Act, namely the engagement in unconscionable conduct.

AND THE COURT ORDERS THAT:

3.         In relation to the application for injunctive relief, the giving of a public notice and the implementation of a compliance program:

a.              Relief in the form sought in the application is refused.

b.             Within 21 days the applicant file and serve any alternative formulation for relief in relation to those matters together with written submissions.

c.              Within 21 days from the date of service upon the respondents of any submission in accordance with paragraph ‘a’ the respondents file and serve any written submissions in response.

d.             Within a further 10 days the applicant file and serve any written submissions in reply.

e.              The issue of further relief in any of the above terms then stand reserved.

4.         The claims for undue harassment and for coercion be dismissed.

5.         The application for a further order of findings of fact be dismissed.

6.         At the same time as each of the parties complies with order 3, each of them also address the issue of costs in written submissions.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This proceeding concerns the circumstances surrounding the sale of a vacuum cleaner by the first respondent (‘Lux’) acting through its agent the second respondent (‘Mr Podger’) to Mrs Janis Standing (‘Mrs Standing’) on 26 August 1999.  In relation to that one transaction on that date the applicant alleges that Lux contravened the Trade Practices Act 1974 (Cth) (‘the Act’) by engaging in unconscionable conduct in contravention of s 51AB of the Act and undue harassment and coercion in contravention of s 60 of the Act.  In respect of Mr Podger the applicant alleges that he was directly knowingly concerned in, or a party to, Lux’s contraventions of the Act.  The applicant alleges that both Mr and Mrs Standing were illiterate and intellectually disabled and that those factors formed a significant part of the circumstances in which the contraventions are said to have arisen.

2                     It is not in dispute that the credit sale contract for the vacuum cleaner (‘the Lux Contract’) was entered into on 26 August 1999.  It was concluded in Port Pirie, South Australia where Mr and Mrs Standing (‘the Standings’) were then living.  In April 2000 they moved to a suburb of Perth, Western Australia where they have continued to live. 

evidence

3                     The witnesses called for the applicant were Mr and Mrs Standing; her mother Mrs Stella Boyce; Ms Tamala Jeffery-Cooper, Local Area Coordinator for the Disability Services Commission in Western Australia; Ms Joan Rudd, a financial counsellor at the Armadale Information & Referral Service (Inc).  Ms Nada Murphy, clinical psychologist who was called as an expert witness.

4                     The respondent’s witnesses were Ms Maria Piteo, Ms Bronwyn Kitson, Ms Mary Hutchison, Ms Joanne Connelly, Mr Anthony Ween, Ms Sharon Nicolle, Mr Jason Jamieson, Mr Vasco Drallini, Mr Trevor McBride and Mr Dennis Podger.  Associate Professor Susan Hayes was called as an expert witness for the respondents.

5                     The case for the applicant accepts that the findings which it invites the Court to make are dependent upon the Court preferring the evidence of Mrs Standing and her husband (‘Mr Standing’) to that of Mr Podger.  There are consequently issues of credibility which require resolution.

6                     The applicant seeks the making of a general adverse credibility finding in respect of Mr Podger.  It contends that the evidence of Mr and Mrs Standing should be seen as having remained consistent on key issues despite their obvious distress at times concerning the process of giving evidence.  On the other hand it contends that the evidence of Mr Podger should be seen as inconsistent, self-serving and unreliable.  Reference is made to three written statements provided by Mr Podger prior to trial which failed to take the opportunity to set out in a detailed, meaningful or adequate way his account of what took place at the Standings’ home.  Reliance is also placed on a table in which alleged inconsistencies are set out.

7                     The respondents submit that Mr Standing was an entirely unreliable witness due to his lack of memory of events and his apparent nervousness in the witness box.  They further submit that Mrs Standing’s evidence showed that her memory was affected by the lapse of time since the events in question and the number of times she had been asked to recall events.

8                     It is the case that Mr Podger’s evidence contained inconsistencies on a number of issues between his initial written statement and his oral evidence.  These were in large measure the difference between general statements and particularised statements.  I did not form the impression that these were as the consequence of the witness being self-serving or that they were so fundamental as to be viewed that way.  Furthermore it is apparent that the evidence of both Mr and Mrs Standing was in some respects affected by the factors raised by the respondents. 

9                     In those circumstances I do not consider the evidence here can be dealt with on the basis of a general adverse credibility finding against any of these persons.  Such a general finding would require the Court to prefer the evidence of witnesses other than the witness against whom the finding had been made.  That would not be appropriate in this case.  The alleged inconsistencies are more appropriately dealt with in the context of the particular issues concerning which they arise.

findings of fact

10                  The reasons now address findings of fact concerning the events on 26 August 1999.

status of the parties

11                  It is not disputed that the applicant is a body corporate entitled to sue in its own name or that Lux is, and was at all material times, a company incorporated in Victoria, a trading corporation and one to which the Act applies.  It carried on business and was engaged in trade or commerce as the supplier of, among other things, vacuum cleaners to consumers.  Mr Podger is and was at all the material times the agent of Lux, and was authorised and empowered to act on its behalf.  Mrs Standing was a consumer and a disability pensioner.  Mr Standing, also a disability pensioner, is the husband of Mrs Standing.

initial contact with the consumer

12                  On the morning of Monday 26 August 1999 Mr Podger had a conversation with Mr Standing.  There is no support for Mrs Standing’s evidence that this occurred on the previous night.  The conversation took place at McDonald’s Restaurant, Port Pirie.

13                  On the applicant’s case it is said that Mr Standing, prompted by identification of an Electrolux badge being worn by Mr Podger, spoke to him.  Exchanges led to Mr Standing stating that he and his wife had an Electrolux vacuum cleaner.  Mr Podger asked Mr Standing if he would like him to come around and look at the vacuum cleaner (‘the old vacuum cleaner’).  Mr Standing replied that he would.  On the respondents’ case Mr Standing indicated to Mr Podger that the old vacuum cleaner was ‘playing up’ and requested that Mr Podger visit his home for the purpose of arranging the purchase of a new vacuum cleaner.  The applicant says Mr Standing did not tell Mr Podger the vacuum cleaner was ‘playing up’ and that Mr Podger told Mr Standing that he would come to the Standing’s home to give their old vacuum cleaner a service.

14                  Mr Podger’s evidence was that Mrs Standing was seated at a table close by.  Her evidence was that when her husband talked to Mr Podger the latter said he would come around and check Mrs Standing’s vacuum cleaner to see if it was all right.  She agreed Mr Podger was invited to come to the home.  As Mrs Standing did not speak to Mr Podger on that occasion, that evidence is to be understood as meaning that Mr Standing invited him.

15                  Mr Podger’s initial position that Mr Standing had told him the vacuum cleaner was ‘playing up’ was not one he maintained in those terms in cross-examination.  There he said that Mr Standing had just said the vacuum cleaner was making ‘a funny noise.’  In his written statement the only reference to Mr Standing referring to the old vacuum cleaner making ‘a funny noise’ was when Mr Podger arrived at the home.

16                  The evidence of Mr and Mrs Standing is to the same effect.  The change of evidence by Mr Podger in cross-examination and the inconsistency of that with his written statement in this respect leads me to prefer their evidence on this issue.  I find that Mr Podger said he would come around to the Standings’ residence and give the old vacuum cleaner a service and did so without Mr Standing having said that it was ‘playing up’ or making a ‘funny noise.’ 

the sale

17                  Mr Podger attended at the home of Mr and Mrs Standing on the afternoon of 26 August 1999.

Duration of attendance

18                  Mrs Standing’s evidence was that Mr Podger arrived at the home at 2.30 pm and that Mr Standing returned home around 5.30 pm.  Mr Podger testified that the whole event took about an hour.  He thought he had arrived about 3 pm. 

19                  Mrs Standing’s evidence of the total time involved in the attendance by Mr Podger is in some degree inconsistent with her evidence that they had talked for about an hour after the initial exchanges.  Furthermore the submissions for the applicant accept that Mrs Standing has only a limited ability to tell the time.

20                  I find that the attendance by Mr Podger took about an hour.

Who was present

21                  Both Mr and Mrs Standing gave evidence that Mr Standing was not at home when Mr Podger arrived at the house.  Mr Podger’s evidence was that it was Mr Standing who answered the door.

22                  Mr Standing’s evidence was that after lunch on 26 August 1999 he went out to get milk for Mrs Standing and to collect some cans.  He said he got caught with a friend and arrived home at about 5.30 pm or 5.45 pm when he saw Mr Podger leaving the house.  He said Mr Podger was with Mrs Standing and was putting things into his car.  This was corroborated in Mrs Standing’s evidence.  She said in cross-examination that Mr Standing did not do his can run on a Sunday.  Mr Standing also testified that when he returned he was forced to park across the road from the home because the ‘Electrolux bloke…was parked in my spot.’  Mrs Standing’s evidence was that it was she who invited Mrs Podger inside.

23                  Mr Podger’s evidence was that when he arrived at the Standing’s home Mr Standing answered the door.  He testified Mr Standing then went ‘over to the other side’ and that during his discussion with the Standings nobody left the room or entered it.  He later described how Mr Standing had reacted to his production of the new vacuum cleaner.  He also said that when he was leaving the home Mr Standing had come outside and carried the old vacuum cleaner in a box to Mr Podger’s car.  His testimony was that at that time Mr Standing had pointed out his yellow van across the street.  Mr Podger said that the van was already there when he arrived.

24                  I consider it is improbable that if Mr Standing was present in the room throughout the discussion of the dealings relating to the sale of the new vacuum cleaner his participation would not have been the subject of more extensive evidence by both Mr Podger and Mrs Standing.  Furthermore the evidence of Mr and Mrs Standing is corroborative of each other.  Therefore I accept Mrs Standing’s evidence that she was present alone in the home with Mr Podger.

Examination of old vacuum cleaner

25                  On arrival at the home, Mr Podger noticed a vacuum cleaner on the front verandah but Mrs Standing told him it was not the old vacuum cleaner, which was inside the home.

26                  Mr Podger’s testified that on entering the home he examined the old vacuum cleaner.  He identified it as an Electrolux 735 about 10 years old.  He turned it on for a few seconds and when he turned it off it made ‘grinding noises’.  On examination he discovered that liquid had entered the vacuum cleaner and all the components needed replacing.  He had told Mrs Standing ‘fusion’ would occur and a service could not avoid this.  He said she had not asked him to explain what fusion meant.  He denied saying it would ‘blow up’ as he had always used the word ‘fusion’. 

27                  Mrs Standing’s evidence was that Mr Podger kept saying to her ‘it’s going to blow up’, which he repeated about 10 times.  She testified she had last used the old vacuum cleaner that morning and it had worked all right.  In a statement to the applicant Mrs Standing said she told Mr Podger the old vacuum cleaner had smoke and dust coming out of it but the evidence at trial does not support a finding to that effect.

28                  Given the technical character of the word ‘fusion’, I find it is more probable than not that Mr Podger told Mrs Standing that the old vacuum cleaner would ‘blow up’ and repeated that statement a number of times during the demonstration.

Raising of voice

29                  Mrs Standing’s evidence included the allegation that as Mr Podger was talking to her saying that the old vacuum cleaner was going to ‘blow up’ he raised his voice, which contributed to scaring her.  She said he was shouting instead of talking normally, although she regarded him as friendly.  He had thereafter talked normally for about an hour.  However she remained ‘a bit frightened.’  In cross-examination she maintained her position that Mr Podger had been shouting but added that he also raised his voice when he handed her the papers for signing.  She agreed she had not previously told anyone the latter was the case.  It is inconsistent with her other evidence as to how Mr Podger behaved at the time of signing.  I do not accept that latter aspect of her evidence as to shouting.

30                  Mr Standing’s evidence was that Mr Podger was friendly but ‘blunt.’

31                  Mr Podger testified that it had not been necessary for him to raise his voice because the vacuum cleaner was ‘quite quiet.’  He said there had not been any change in the tone of his voice and his practice was not to talk while a vacuum cleaner was being demonstrated.

32                  The applicant seeks a finding that Mr Podger shouted and/or raised his voice at Mrs Standing or ‘at least acted in a manner that caused Mrs Standing to become fearful of him.’ 

33                  I am not satisfied that Mr Podger shouted at Mrs Standing.  I am satisfied that he had a blunt manner and, as an expression of it, he raised his voice.  The duration of this was short-lived and confined to the period of the demonstration of the old vacuum cleaner.

Physical proximity

34                  In her evidence Mrs Standing testified that when Mr Podger commenced talking to her inside the home he was standing ‘right next’ to her.  She could not say how close although in her evidence in chief it was estimated to be between two feet and one metre and at one stage a little bit closer.  She had not said anything to him because she did not want to annoy him.  She maintained she was scared of him and just wanted him to go.  Mrs Standing said she had moved to the other side of the lounge to avoid being scared by the presence of Mr Podger.  These circumstances were, she said, aggravated by the behaviour of her dog, which she had shut in another room and which she described as ‘going berserk in the background’.  He testified that he had not heard a dog at any time.

35                  In cross-examination on this issue Mrs Standing said her initial conversations with Mr Podger had occurred when they were standing up behind her lounge which was located near the passageway from the entrance to the home.  This occurred when it was necessary for them both to examine the old vacuum cleaner.  When she went around the lounge Mr Podger had remained behind it until coming to sit on the lounge when she was writing her name on documents

36                  I am not satisfied that Mr Podger stood in any inappropriate close physical proximity to Mrs Standing.  The only time when he was in close physical proximity was when he arrived at the home and it was necessary for him to inspect the old vacuum cleaner, and when he demonstrated the new vacuum cleaner.  It not said by Mrs Standing that there was anything inappropriate in Mr Podger’s proximity when he sat on the lounge while completing documentation.

Demonstration of the new vacuum cleaner

37                  Mr Podger’s evidence was that after examining the old vacuum cleaner he went to his car and brought in the new vacuum cleaner (model D746R) for the purpose of blowing out the dirt and dust in the old vacuum cleaner.  He was readmitted to the home.  He said, when he removed the new vacuum cleaner from the box Mr Standing liked and wanted it.  He had ‘jumped on it’ so that Mr Podger did not get a chance to blow out the old vacuum cleaner.  Mr Podger then assembled the new vacuum cleaner and demonstrated it.  He did this because it was part of his ‘ABC’ from which he did not diverge.  Mrs Standing told him she already knew how a vacuum cleaner worked.

38                  I have already found that Mr Standing was not present.  The evidence is therefore to be understood as relating to a demonstration to Mrs Standing alone.

Production of prior contract

39                  Mr Podger’s evidence was that Mrs Standing produced her copy of the contract for the purchase of the old vacuum cleaner, which she kept in a small container or tin.  In the course of her cross-examination Mrs Standing denied having provided the copy.  Her mother’s evidence was that she had looked for a copy of the contract but did not find it.  I am not satisfied that the copy was produced.

Trade-in

40                  The evidence establishes that Mr Podger told Mrs Standing that he would give her $50 cash for her old vacuum cleaner if she traded it in on a new one.  Mrs Standing said she accepted this because she needed the money. 

Credit application

Consumer’s illiteracy

41                  Mr Podger gave Mrs Standing an application for credit for completion.  He testified that she could only complete her name, address and date of birth.  He said she had told him she was having trouble filling in the form because she could not spell very well.  Mr Podger accepted he had taken over the completion of the application after the reference to the postcode.

42                  In his written statement Mr Podger said that after Mr Standing had declared an interest in taking the new vacuum cleaner he had said to the Standings that there was quite a lot of paper work involved.  He said Mrs Standing then said ‘I can’t spell too good’, and Mr Standing had said the same thing.  He then asked them whether they could read and they responded affirmatively.  In cross-examination on this evidence Mr Podger testified that he had asked Mrs Standing whether she could read and she had answered affirmatively.  He understood Mrs Standing to be able to read the questions but unable to complete the answers because she could not do the spelling.  In an earlier unsigned statement he had said that after Mrs Standing had said she could not spell, she had asked him to read it to her.  He denied having changed that statement other than to state the true position.  When asked whether in any event it had been obvious to him that the Standings’ literacy level was very low, he did not accept that was the case.  He claimed that credit application forms were always filled in the way the one here had been completed.

43                  In her evidence in chief Mrs Standing she had told Mr Podger she could not read the document he had passed to her.  He had replied that she did not have to read it, only sign it.  In cross-examination she stated she had handed the document back to Mr Podger but had not asked him to complete it.  There is further evidence set out below concerning the manner in which the Lux Contract was completed.

44                  Ms Jeffery-Cooper gave evidence that she assisted the Standings with reading and writing in 2000.  This involved explaining to them words in documents.

45                  The applicant invites the Court to find that Mrs Standing told Mr Podger she could not read.  Mrs Standing’s evidence that she said she could not read is supported by the circumstances in which the documents were completed and I accept her evidence.  In any event I find that Mr Podger was on notice of Mrs Standing’s substantial illiteracy by reason of her telling him that she was having trouble filling out the form and could not spell very well.

Failure to inquire as to financial circumstances

46                  The applicant submits the evidence establishes that Mr Podger filled out the credit application form for Mrs Standing but failed to make due inquiry as to whether she could afford the new vacuum cleaner.  It is said this occurred despite the fact that it is a requirement of the Lux policy that such an inquiry be made, his awareness the Standings were on a disability pension and the apparently modest circumstances in which they lived. 

47                  The respondents submit this is not a relevant consideration because the proceeding does not involve an allegation of a sale of a vacuum cleaner other than at a standard price with a standard trade-in under a regulated contract.

48                  As it is not part of the applicant’s case that this was an element in relation to any of the claims, I accept the submission of the respondents.

Lux contract

Explanation of terms

49                  It is not in issue that Mr Podger produced the Lux contract to Mrs Standing to sign.  Included in it were documents entitled ‘financial information summary and credit sale contract (purchaser copy)’; ‘terms and conditions’; ‘financial information statement and credit sale contract (office copy)’; ‘form 2 information statement’; and ‘Schedule 1 incorporating Form 1 Notice of Right to Rescind Door to Door Contract and Form 2 Recision Notice’. 

50                  In his cross-examination Mr Podger testified that he had explained the terms of the Lux Contract to Mrs Standing.  He could not recall precisely what he had said to her and relied on reference to his standard practice in such circumstances, saying ‘it’s always the same’.  He claimed to have referred essential aspects such as the cost, interest and stamp duty with her.  He said he had then asked her ‘would she mind signing the contract.’  His testimony was that he had not read the contract to her but had inquired if there was anything she wanted to ask him about, to which she had replied in the negative.

51                  Mrs Standing’s evidence was that Mr Podger had not explained the terms of the Lux Contract to her or given her any other information.  Her evidence in chief was that she did not understand what is meant by terms such as interest, default, default interest, annual percentage interest rate, mortgage, enforcement expenses, or cooling off period.

52                  Evidence establishes that Mr Podger completed the Lux Contract by use of data from the credit application.  Mrs Standing then signed it.

53                  Mr Podger could not specifically recall what he had said to Mrs Standing and testified on this aspect in terms of what he ‘would have done’ as a matter of standard practice.  Mrs Standing’s evidence on the point was unequivocal.  I therefore accept her evidence and find that Mr Podger did not explain to her the terms of the Lux Contract.

Independent advice

54                  In cross-examination Mr Podger accepted that he had considered whether Mrs Standing should take independent advice.  However, because she had told him she could read (and although she had told him also she could not spell) he had not taken steps to enable her to obtain independent advice.  I find that Mr Podger did not suggest to Mrs Standing that she obtain independent advice.

Post-sale events

Payments

55                  It is not in issue that payments were made under the Lux Contract by way of direct debit to Lux for the period 30 September 1999 to 30 May 2000 being one payment of $45.00 and 18 payments of $50.00.  Subsequent payments have not been made nor have any demands been issued for such payments or the return of the vacuum cleaner.

Complaint

56                  There is no dispute that Mrs Standing did not complain directly to Lux and/or Mr Podger in relation to his conduct.

57                  The applicant submits that Mrs Standing told her husband, Mrs Boyce and Mrs Rudd of the conduct of Mr Podger in a manner which should be considered to be a complaint.  Mr Standing’s evidence of the communications from his wife on his return have already been set out.  Mrs Boyce spoke of Mrs Standing being fairly upset with Lux.  Mrs Rudd considered Mrs Standing had not understood what she had signed so she lodged a complaint with the applicant.

58                  The applicant also submits that lack of commercial understanding by Mr and Mrs Standing should be seen as rendering them unlikely to know how to pursue a complaint in relation to the transaction with Lux.

59                  The respondents submit that Mrs Standing not only raised no complaint but had wished to acquire the vacuum cleaner and has been happy to retain it.  However, Mrs Standing’s evidence that she preferred to keep the new vacuum cleaner was expressed in the context that her old vacuum cleaner had been taken away and her saying ‘any vacuum cleaner’s nice’. 

60                  I find Mrs Standing did not make any complaint.  That finding does not cause me to not accept her evidence in other respects where appropriate.

Impact of conduct on consumer

Resistance to purchase

61                  In the opening for the applicant it was contended that Mrs Standing told Mr Podger on more than one occasion that she did not want a new vacuum cleaner.  However, that was not supported by any evidence and the applicant correctly concedes that she did not so advise Mr Podger.

62                  However, the applicant submits that the evidence establishes that Mrs Standing gave Mr Podger the clear impression that she did not wish to purchase the vacuum cleaner.  This submission is founded on evidence that she repeatedly told Mr Podger that the old vacuum cleaner was ‘fine’ and ‘all right’ and she did not need to be shown how the new vacuum cleaner worked, with the implication that she did not want to purchase it.  The applicant submits that it should be found that Mr Podger knew (or ought to have known) that Mrs Standing did not want to purchase the new vacuum cleaner.

63                  Mr Standing’s evidence was that Mrs Standing told him that she was frightened of Mr Podger because he pushed the vacuum cleaner on to her.  On his return to the home he found her to be shaking because she was frightened and it was necessary for him to take her to hospital. 

64                  The respondents submit that no such finding is open in the following circumstances in particular.  The Standings had invited Mr Podger to their home.  The old vacuum cleaner was playing up and not working.  (The evidence was that the old vacuum cleaner was working but making a grinding noise).  Mr Standing said they would take the new vacuum cleaner.  Mrs Standing signed the contract and provided details to Mr Podger to enable him to fill out the documentation.  She accepted a trade-in for her old vacuum cleaner.  She discussed direct debit as a means of payment of the instalment payments.  She and her husband later arranged the instalment variations and requested a missing part.

65                  They submit that Mrs Standing wished to acquire the new vacuum cleaner and has been happy to retain it.  In cross-examination she accepted the new vacuum cleaner worked and was a good one.  When asked whether she preferred to keep it, she responded ‘it doesn’t worry me’. 

66                  The evidence of Mr Standing must be discounted on the basis of the earlier finding that he was not present. 

67                  I do not consider that the inference which the applicant seeks follows from the premises relied upon.  Reluctance to purchase is more likely than not a daily feature of many sales negotiations and the focus of their endeavours.  In the light of the applicant’s concession I do not consider the inference can be fairly drawn from the remaining evidence.

Causation of contractual conclusion

68                  Mrs Standing’s evidence included statements that while Mr Podger was at the home she thought he was friendly enough when he was not shouting at her, though he was angry with her; did not want him to stand as close to her as he then was; felt scared; did not say anything to him about being uncomfortable, scared or not wanting the vacuum cleaner because she was too scared and frightened and did not want to annoy him; just wanted him to leave and thought the only way to get rid of him was to sign the paper.  In cross-examination she accepted that she had not told Mr Podger that she did not want the new vacuum cleaner or that she did not want to proceed with the contract.  Nor did she say to him that he should go away.  The applicant invites the Court to find that Mrs Standing signed the Lux Contract because she was scared of him and because she thought it was the only means by which she could get him to leave her home.

69                  I find that Mrs Standing’s subjective feelings that she was frightened of Mr Podger and wanted him to leave the home led her to think that she could only get him to do so if she signed the Lux Contract.  However, I am also satisfied she did not convey her subjective feelings in this respect to Mr Podger or otherwise make them apparent.

INTELLECTUAL DISABILITY

Expert reports

70                  The applicant’s expert Ms Murphy testified that her assessment of Mrs Standing’s intellectual functioning confirmed Mrs Standing as having ‘an intellectual disability.’  She made other observations based on her impressions of Mrs Standing including her limited reading ability and her inability to demonstrate understanding of key terms used in the Lux Contract. 

71                  The respondent’s expert Associate Professor Hayes gave evidence that apart from the application of an IQ test, Ms Murphy did not attempt to apply any recognized adaptive behaviour test and that there are various weaknesses in using an IQ test.  In particular she testified that Ms Murphy’s assessment was not undertaken with the most recent and accurate version of the WAIS-R test applicable to intellectual disability and intellectual functioning.  She said use of the more up to date WAIS-III together with the Australian adaptation of the record forms with Australian scoring would have been preferable.  She was also critical of the use by Ms Murphy of the role play method, regarding it as unvalidated and unreliable.

72                  The respondents also point to other difficulties in the report of Ms Murphy.  It was based on affidavit evidence rather than evidence called in the proceeding.  The evidence was not prepared in compliance with the Court’s Practice Direction concerning Guidelines for Expert Witnesses.  No history was taken from the Standings.  Statements in the report expressed opinions on issues for decision by the Court.  Supporting test results and notes were not tendered in evidence.

73                  In these circumstances I am not assisted by the report of the applicant’s expert.

74                  Although the written submissions for the applicant repeat reliance upon earlier submissions concerning the report by Ms Murphy, I agree with the submissions for the respondents that the applicant now relies on a number of other matters including the impression and presentation of Mrs Standing in court as evidence of intellectual impairment.  That is, the principal thrust of the applicant’s case on this issue derives from elements in the case other than the report of its expert.

75                  Although I approach that evidence with a mind open to be persuaded according to the balance of probabilities, a court would not usually expect to reach a finding of fact on a matter such as this state of mind without the assistance of expert diagnosis and description.  Furthermore while the submissions address intellectual impairment, the pleadings address intellectual disability and the difference, if any, between these descriptions is not a matter on which the Court is assisted by evidence.

Court demeanour

76                  The applicant contends that the Court should take account of the demeanour of Mr and Mrs Standing when they gave evidence to support a finding that they are persons with an intellectual disability.  I accept they were softly spoken and intimidated by the process.  The Court had to adjourn on a number of occasions to allow them to collect themselves.  It is said the nature of their responses should also be taken into account.  However, in the absence of appropriate expert evidence, it is not open to this Court to infer from the circumstances referred to concerning court demeanour that Mrs Standing was a person with an ‘intellectual disability’.  There is nothing in the observations of the Court which would
entitle it to conclude from the demeanour that the particular state of mind alleged existed.  However those observations do support the inference that Mrs Standing was patently a person of some vulnerability because she was substantially illiterate and unable to understand commercial matters in any depth.

Management of affairs

77                  The applicants also say that the Court should rely on the evidence of Mrs Boyce, Ms Rudd and Mrs Jeffery-Cooper who gave evidence that each of the Standings required assistance in managing their affairs.  Partial reliance is also placed on the evidence of the respondent’s witnesses Ms Connelly and Ms Hutchison.  Their evidence addressed how each of them assisted Mr and Mrs Standing.  The applicants say that the desire to live independently needs to be distinguished from the ability to live without assistance from others.

78                  Having regard to that evidence I find that the Standings are persons who receive, benefit from and need assistance with the management of their financial affairs from time to time.  At the same time they are each able to live independently and manage their lives from day to day within a central range of activities. 

Understanding of other contracts

79                  The respondents submit that even if illiteracy is established it does not establish that Mrs Standing was unable to make worthwhile or voluntary judgements.  Reliance is placed on evidence that she was quite capable and used to making independent and voluntary judgements concerning what she purchased.

80                  It is not in issue between the parties that certain prior contracts were entered into by Mrs Standing alone or with her husband.  These comprised a loan contract with Toyota Finance Australia Ltd for a Toyota Corona Sedan (‘the Toyota’) concluded on 18 January 1993; a contract for the purchase of a property at 10 Ninth Street, Port Pirie concluded around 17 August 1994; completion of a Homestart Application Form on 9 September 1994; signature of a Homestart Loan Acceptance around 15 September 1994; and signature of Homestart Loan fortnightly Payment Authorities around October and December 1994.

81                  The respondents point to evidence which they say establishes Mrs Standing was able to and did make worthwhile judgments relating to the purchase of goods.  It is submitted that the evidence shows she knew she had obligations in connection with the borrowing of money and convinced other persons she understood the nature of a contract.  The evidence relied on derives from testimony by Mr Ween, Ms Connelly, Ms Hutchinson and Ms Kitson. 

82                  The applicant contends that evidence of prior contracts is not evidence of understanding and in any event it discloses a poor record of performance under the contracts from which a lack of understanding of obligations can be inferred.  It is also submitted that compliance with contractual obligations by the Standings only occurred where there was a direct debits system in place. 

83                  In reply the respondents contend that the evidence shows that the Standings understood that if they wanted to purchase something they had to pay for it; they could purchase goods by instalments; and when they did not have enough money to pay all their bills they would pay a smaller amount of each bill, or choose which bills to pay and not others.  Furthermore it is said that Mrs Standing entered into a contract to purchase a Honda car prior to the Toyota car and paid instalments of $50 a fortnight, so it cannot be said contractual compliance by her only occurred as the consequence of the utilisation of a direct debit system.

84                  I do not consider the evidence relating to the prior contracts establishes the proposition that Mrs Standing (or her husband) understood all the implications of entering a contract.  However, it does support a finding, which I make, that they were prepared to enter into contracts for purchase, understood the amount and frequency of payments to be made as a consequence but were not heedful of the consequences of the failure to make payments.  I am not able to conclude they did not understand the consequences of non-compliance, only that for reasons they considered important they ignored those consequences.

85                  I do not consider that the precise character of the understanding by Mrs Standing of the Lux Contract is open to inference from the nature of her approach to prior contracts.  Rather her understanding of the Lux Contract may be inferred from the evidence relating to how that contract was concluded by her.  I find she knew she was signing an agreement for the purchase of a vacuum cleaner, although her evidence was she did this to rid herself of the presence of the salesman.  She was not aware of the implications of default although she understood that payments were to be made.

Inference of knowledge by agent

86                  I do not accept that it can be inferred from Mr Podger’s evidence in cross-examination that he considered whether Mrs Standing should obtain independent advice, that he was on notice that she suffered from an intellectual disability.  His evidence that he had considered that possibility was preceded by evidence of denial that it was clear to him that Mrs Standing did not understand the terms of the Lux Contract or did not have the capacity to understand that contract.

87                  Likewise I do not accept that evidence of Mr Podger telling Mr Jamieson that a sale had already been made leads to a proper inference that Mr Podger considering that, as a consequence of the appearance of the Standings, it would be easy to get either one of the them to sign the Lux Contract.

Relevance of evidence of independent living

88                  The respondents submit that the evidence of Mr and Mrs Standing as well as the evidence of Mrs Boyce makes apparent that the Standings have had a long held desire to live independently.  They had done so in South Australia after the return of Mrs Standing’s parents to Western Australia.  They had made a decision to purchase a house and obtain a mortgage without the assistance of those parents.  They would not purchase anything which they did not want and would not consult a third party if they wanted to purchase household goods.  The respondents support their submissions in this respect by a schedule of evidence.

89                  The applicant does not dispute that the Standings wished to and did attempt to live independently.  However, they deny that anything can be inferred about their understanding of the Lux Contract from their desire to live independently.

90                  I agree with the submission of the applicant that it cannot be inferred from the fact of the measure of independent living enjoyed by the Mrs Standing that she had any particular understanding of the Lux Contract.  All that is open to inference is that in the course of her independent living she entered into contracts.

liability for acts of agent

application of s 84(2)

91                  It is not in dispute that Mr Podger was an agent of Lux.  Nor is it in dispute that Mr Podger’s conduct here in issue was in any way beyond the scope of the terms of his agency with Lux.  Accordingly, if there are any actions of Mr Podger in respect of which liability is found to arise in respect of what is alleged to have occurred on 26 August 1999, the Court should find that Lux is liable for such actions: s 84(2).

Application of s 80(1)(e)

92                  If it is the case that Lux is found to have contravened the Act, there cannot be on the facts any dispute that Mr Podger was directly knowingly concerned in, or party to, that contravention within the meaning of s 80(1)(e) of the Act.

unconscionable conduct

requirements of the law

93                  The applicant seeks a declaration against Lux in respect of the alleged unconscionable conduct in contravention of s 51AB of the Act.  A declaration is also sought against the second respondent for being directly knowingly concerned in or a party to those contraventions of the first respondent. 

94                  Section 51AB(1) provides that a corporation shall not, in trade or commerce, in connection with the supply or possible supply of goods or services to a person, engage in conduct that is, in all the circumstances, unconscionable.  Section 51AB(2) provides a list of non-exclusive matters to which a court may have regard for the purposes of determining whether a corporation has contravened s 51AB(1).  These are the relative bargaining strength of the parties; whether the stronger party imposed conditions that were not necessary to protect legitimate business interests; whether the consumer was able to understand any relevant documents; whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer; and whether the consumer could have obtained better terms and/or price for the supply elsewhere.  To ground a finding of contravention of s 51AB, there must be some circumstance other than the mere terms of the contract itself which renders reliance on the terms of the contract unconscionable:  Hurley v McDonald’s Australia Ltd (2000) ATPR 41-741 at [31].  It is not material therefore that the applicant does not place any reliance upon the terms of the contract.

95                  The words ‘engage in conduct’ refer to both the doing and refusing to do any act: s 4(2).  A company may be deemed to have engaged in a conduct by the conduct of its servants or agents acting within the scope of their actual or apparent authority: s 84(2). 

96                  The words ‘in connection with’ have a wide connotation requiring merely a relationship between one thing and another:  Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 479.  Here it is not in dispute that the conduct of which complaint is made was in connection with the supply of the new vacuum cleaner to Mrs Standing.

97                  The words ‘the supply…of goods…to a person’ apply to a good of a kind ordinarily acquired for personal, domestic or household use (s 51AB(5)) and encompass the new vacuum cleaner.

98                  The word unconscionable is not a term of art.  It is not limited to traditional equitable or common law notions of unconscionability:  Australian Competition & Consumer Commission v Simply No-Knead (Franchising) Pty Ltd (2000) 104 FCR 253 at [31].  It bears its ordinary meaning of ‘showing no regard for conscience, irreconcilable with what is right or reasonable’:  Australian Competition & Consumer Commission v Samton Holdings Pty Ltd (2002) 117 FCR 301 at [44]; Hurley at [19]-[20]; Qantas Airways Ltd v Cameron (1996) 66 FCR 246 at 262.  What is required is ‘serious misconduct or something clearly unfair or unreasonable’: Hurley at [19]-[20].  It will be relevant whether advantage is taken of an innocent party who, though not deprived of an independent and voluntary will, is unable to make a worthwhile judgement as to what is in his or her best interests: Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 461.

99                  Whether there was any reliance on the terms of the Lux Contract by Lux in seeking to enforce the contract is not a factor material to the issue of the unconscionability of the conduct of Lux and Mr Podger on 26 August 1999 (Hurley at [31]). 

application of the law

Relative bargaining strengths: s 51AB(2)(a)

100               The applicant submits that the relative bargaining strengths of Mrs Standing and Mr Podger should be understood in the context of the following factors.  Mrs Standing was illiterate and had ‘the reasonable appearance of intellectual disability.’  I have accepted that she was substantially illiterate and did not understand commercial matters in any depth, matters which were apparent to Mr Podger.  As for the issue of intellectual disability, I have already found that the applicant’s case in that respect has not been made out.

101               Next it is said she had a limited ability to assess the financial impact of purchasing the new vacuum cleaner and whether it was in the interests of her and her husband.  I accept this follows by inference from the evidence.  A related claim that Mrs Standing was unable to afford the new vacuum cleaner is not supported, although she gave evidence that generally she did not know what she could afford to buy.

102               It is also said Mrs Standing was home alone at the time of the sale.  I have so found.

103               Then the applicant says that she was denied the opportunity to obtain independent advice.  The respondents say that she did not seek such an opportunity.  The facts as found are that Mr Podger considered whether Mrs Standing should obtain independent advice but, satisfied by her that she could read, he did no more.  That finding must be considered in the context of the further finding that he had been told by her she could not read and in any event was on notice of her substantial illiteracy.  In all the circumstances it is significant that Mr Podger did not act on his thought that Mrs Standing should have independent advice.

104               Additionally it is said Mrs Standing was scared of Mr Podger and wanted him to leave her home.  The evidence shows that Mrs Standing was initially frightened by Mr Podger but after she moved around the lounge that fear substantially diminished and she regarded Mr Podger as being both friendly and acting normally.

105               The respondents also say on this heading that the Standings invited Mr Podger to their home.  The finding has been made that Mr Podger said he would come to their home to service the old vacuum cleaner. 

106               The respondents also say that the issue of relative strengths is to be considered in the context that the Lux Contract was a standard regulated contract.  That characterisation of the Lux Contract does not assist in addressing the issue of comprehension of it by Mrs Standing.

Capacity to understand: s 51AB(2)(c)

107               I have found that Mrs Standing told Mr Podger she could not read.  In any event I have found that he was on notice of her illiteracy by reason of her telling him that she was having trouble filling out the form and her inability to spell very well.  Additionally I have found that she was patently a person of some vulnerability because of her illiteracy and level of comprehension of commercial matters.  Finally I have found that she knew she was signing an agreement for the purchase of a vacuum cleaner but did not fully understand the implications of the Lux Contract.

Undue influence or pressure and unfair tactics: s 51AB(2)(d)

108               The applicant here relies on the evidence that Mr Podger considered it may be necessary for Mrs Standing to obtain independent advice but did not raise the matter.  I accept that submission and regard it as important.

109               Next it is said by the applicant that Mr Podger did not explain the Lux Contract to Mrs Standing.  I have so found. 

110               Then the applicant places reliance on Mr Podger shouting or raising his voice.  I have found he did not shout.  I have also found he raised his voice while she was alone with him but only for a short period associated with the inspection and demonstration of the old and new vacuum cleaners.

Alternative credit: s 51AB(2)(e)

111               The applicant states that Mrs Standing may have been able to acquire credit from a person other than Lux at a significantly lower rate of interest given the interest rates current at that time.  When the exhibit said to support this was tendered it was on the limited basis that it stated the Reserve Bank interest rates at the time as opposed to any concession it was relevant to any matter before the Court.  Furthermore there is no evidence going to the issue that Mrs Standing might have been able to acquire credit as alleged.

Conclusion on unconscionability

112               In my opinion the features of the meeting between Mrs Standing and Mr Podger set out in the above considerations required to be addressed by the s 51AB(2) make apparent that the meeting was ‘clearly unfair or unreasonable’.  It was in my view ‘irreconcilable with what is right or reasonable’.  Mr Podger came close to realising this when he thought of the question whether Mrs Standing should receive independent advice.  He veered away from that course because he considered she had told him that she could read (evidence I have not accepted).  However, even if that was the case he was on notice that Mrs Standing was illiterate and unable to understand commercial matters in any depth.  She was alone without the assistance of even her husband.  While it is clear she was not deprived of an independent and voluntary will, it must have been apparent to him that she was not able to make a worthwhile judgement as to what was in her best interests in the circumstances.  I consider that it is established that in all the relevant circumstances (and particularly his decision not to give Mrs Standing the opportunity to take independent advice) he acted without regard to conscience and so acted unconscionably.

113               The consequence is that Lux is also liable for his conduct in that respect.

undue harassment

requirements of the law

114               The applicant seeks a declaration against the first respondent that it used undue harassment in connection with the supply of the new vacuum cleaner to Mrs Standing in contravention of s 60 of the Act.  It also seeks a declaration against the second respondent on the basis of him having been, directly or indirectly, knowingly concerned in or a party to such contravention.

115               Section 60 provides that a corporation shall not use physical force or undue harassment (or coercion) in connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer. 

116               The meaning of ‘harassment’ was examined by French J in Australian Competition & Consumer Commission v McCaskey (2000) 104 FCR 8 at [47].  He referred to the dictionary definition of the verb ‘harass’ as:

‘1 Trouble by repeated attacks.  Now Freq; subject to constant molesting or persecution. 2 Lay waste, devastate. 3 Tire out, exhaust. 4 Overwhelm with cares and misfortunes etc...’:  New Shorter Oxford English Dictionary  (Clarendon Press, Oxford, 1993) p 1188.

The noun of that verb is ‘harassment.’  His Honour considered it important to have regard to its context in considering its application in s 60.  He said that it describes a range of conduct which involves applying repeated pressure to a consumer who is under no pre-existing obligation to acquire goods or services.  French J considered that the word ‘undue’ added an extra layer of evaluative judgement, although more relevant to debt recovery than to sale of goods or services. 

117               His view was that repeated unwelcome approaches to a potential acquirer of goods or services could in his view qualify as harassment and could require very little additional evidence to attract the characterisation of undue harassment.  In the case of recovery from a debtor, he said that if the frequency, nature or content of the approaches and communications associated with them are such that they are calculated to intimidate or demoralise, tire out or exhaust a debtor rather than convey the demand and an associated legitimate threat of proceedings, the harassment will be undue.

118               In Australian Competition & Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472 at [62] Hill J generally followed the views expressed by French J in McCaskey. His Honour said that the word ‘undue’ suggests that what is done must, having regard to the circumstances in which the conduct occurs, extend beyond that which is acceptable or reasonable.  He said it ensures that conduct which amounts to harassment will only amount to a contravention of the section where what is done goes beyond the normal limits which, in the circumstances, society would regard as acceptable or reasonable and not excessive or disproportionate.  (The applicant’s submissions put emphasis upon the words ‘in the circumstances’.)  He also stated that ‘harassment’ connotes conduct which can be less serious than conduct which amounts to coercion.  The reasonableness of that conduct was a matter which his Honour considered was relevant to whether what is harassment constitutes undue harassment.

application of the law

Repeated pressure

119               The applicant says that Mr Podger applied repeated pressure to Mrs Standing to purchase the new vacuum cleaner when she was not under any obligation to do so.  In particular it is said that he stood close to her and repeatedly told her that the old vacuum cleaner was ‘going to blow up.’  I have found that the standing in proximity was limited to a short time and was ameliorated by Mrs Standing moving away.  Further I have found that no issue of closeness arose when he sat on the lounge while the documentation was completed.  I have found that he repeated the statement that the old vacuum cleaner was going to blow up only at the time of the inspection of it.

Raising of voice

120               There is a finding that Mr Podger did not shout but that, as an expression of his blunt manner, raised his voice.  This was confined to the period when the old vacuum cleaner was being inspected and was short-lived.  In that short period Mrs Standing was frightened although thereafter she remained ‘a bit frightened’.

Advice to sign not read

121               The applicant then refers to Mr Podger having told Mrs Standing that she did not need to read the Lux Contract, only sign it.  I have found that occurred.

Impression of not leaving

122               It is contended for the applicant that Mr Podger gave Mrs Standing the impression that he would not leave her home until she agreed to purchase the new vacuum cleaner.  It is the case that Mrs Standing gave evidence that she just wanted him out of her home and signed the Lux Contract so that he would go.  However, there is no evidence that Mr Podger gave her the impression that was the only way he would go.  Evidence only shows her subjective perception of the effect of his presence.  There is also her evidence that at no time did she ask him to leave or say that she did not want to purchase the new vacuum cleaner.

Conclusion on undue harassment

123               On the above considerations the applicants submit that the conduct of Lux through Mr Podger was unacceptable, unreasonable, excessive and disproportionate.  I am unable to accept that those adjectives correctly describe Mr Podger’s conduct during his visit to the home of Mrs Standing.  Neither the standing in close proximity nor the raising of the voice continued beyond a very short period in the total time of the attendance.  They occurred early at a time when Mrs Standing had been disturbed by her dog and was required to meet Mr Podger.  I have found that her concerns were a product of her subjective perceptions rather than the conduct of Mr Podger.

124               I do not think that any of the conduct relied upon properly can come within the characterisation of repeated pressure.  This is not a case where over the course of his attendance Mr Podger frequently embarked on actions calculated to intimidate, demoralise, tire out or exhaust the consumer.  The element of repetition is at a minimum and is confined to his repetition of the statement that the old vacuum cleaner would ‘blow up’.  Even if it is correct that any of his conduct amounts to harassment, I am not satisfied it can properly be found to satisfy the requirement that it constitutes ‘undue’ harassment.  In my view this element of the claim is not made out.

coercion

requirements of the law

125               The applicant also seeks declarations against Lux and Mr Podger founded on alleged coercion, which is also included along with harassment in s 60. 

126               French J examined that concept also in McCaskey at [50] – [53].  Again his Honour referred to the dictionary definition.  The word as a noun is defined as referrable to:

‘1 Constraint, restraint, compulsion; the controlling of a voluntary agent or action by force.  2 The faculty or power of coercing or punishing; the power to compel assent.  3 Government by force; the employment of force to suppress political disaffection and disorder.  4 Physical pressure; compression.  Now rare’ (New Shorter Oxford English Dictionary p 433). 

The word as a verb is defined as meaning:

‘1 Forcibly constrain or impel (into obedience, compliance, etc.); force or compel to do.  b Enforce.  2 Enforce obedience; use coercive measures.’

He said each case will turn on its own facts (at [51]).  Addressing coercion in relation to recovery of debts, his Honour said that if bullying, bluff, misrepresentation or stand-over tactics were avoided, the conduct would be unlikely to contravene the law (at [51]).

127               In Maritime Union at [61] Hill J said:

‘Coercion…carries with it the connotation of a force or compulsion or threats of force or compulsion negating choice of freedom to act:  see Hodges v Webb [1920] 2 Ch 70 at 85 – 87 per Peterson J.  A person may be coerced by another to do something or refrain from doing something.  That is to say, the former is constrained or restrained from doing something or made to do something by force or threat of force or other compulsion.  Whether or not repetition is involved in the concept of harassment, and it usually will be, it is not in the concept of coercion.’

application of the law

128               The applicant contends that Mr Podger’s conduct was calculated to intimidate Mrs Standing, and was excessive and aggressive such that she felt bullied by him.  Specific aspects relied upon to support this submission are as follows.

Raising of voice

129               There is a finding that Mr Podger did not shout but that, as an expression of his blunt manner, raised his voice.  This was confined to the period when the old vacuum cleaner was being inspected and the new vacuum cleaner was being demonstrated, and was short-lived.  In that short period Mrs Standing became frightened.  It was followed by the rest of the hour they were together during which Mrs Standing regarded Mr Podger as being friendly and acting normally, although she remained ‘a bit frightened’.  On her own account, it was not his continuing conduct which was the cause of any remaining concern felt by her.

Advice to sign not read

130               The applicant then refers to Mr Podger having told Mrs Standing that she did not need to read the Lux Contract, only sign it.  I have found that occurred.

Proximity

131               I have found that the standing in proximity was limited to a short time and was ameliorated by Mrs Standing moving away.  Further I have found that no issue of closeness arose when he sat on the lounge while the documentation was completed.

Impression of not leaving

132               I have already discounted this submission which was also made in relation to undue harassment.

Engendering of fear

133               The applicant also says that Mrs Standing’s evidence is that Mr Podger’s conduct engendered fear in her mind and that she was scared of him and by his conduct.  Her evidence must be fully understood because she also testified that she found him friendly and that he acted normally.  It must also be understood in the context of her particular vulnerability arising from her illiteracy, her inability to understand commercial matters in any depth and the fact that Mr Podger had been invited to attend at her home.  While I accept her evidence establishes that she felt scared, I do not accept that in all the circumstances her subjective perception in that respect is a proper measure of the conduct of Mr Podger.

Circumstances of the conduct

134               It is relevant generally to have in mind that Mrs Standing was home without her husband and that Mr Podger was on notice of her illiteracy and lack of understanding in relation to commercial matters in any depth.

Conclusion in relation to coercion

135               In my opinion the evidence does not establish the use of force or compulsion or threats of the same, being the necessary element to make out coercion.  While repetition is not here an element, I do not consider that the conduct of Mr Podger in standing in proximity to Mrs Standing in the circumstances previously found or the raising of his voice have about them in the all the circumstances the character of coercion.  Viewed in all the circumstances this is not a case of bullying, bluff, misrepresentation or stand-over tactics.  I do not consider the claim of coercion is made out.

RELIEF

136               It is necessary now to consider what relief the applicant is entitled to in respect of the claim it has made out that the respondents have breached s 51AB. 

declaratory relief

137               It is clear that the Court should, in exercise of its power to make declarations provided for in s 21 of the Federal Court of Australia Act 1976 (Cth), make declarations directly reflecting the contravention found in respect of Lux and Mr Podger. 

injunctive relief

138               The power of the Court to grant injunctions in respect of contraventions of the Act is provided for in s 80.  Subsection 80(4) and subs 80(5) make apparent that the Court may grant an injunction to restrain an act or require an act whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of the contravening kind.  It has been accepted that the Court may nevertheless grant an injunction where a declaration has been made and there is little likelihood that the respondents might engage in the restrained behaviour, if it is in the public interest to do so.  For that purpose, the public interest is to be understood in the context of the role of the applicant in establishing normative processes in relation to the operation of the whole market by ensuring that a person in that market has a fair opportunity to obtain what the market should, over time, deliver.  See Australian Competition & Consumer Commission v 4WD Systems Pty Ltd (2003) 200 ALR 491 at 557-558 [216]-[217].

139               The form of the injunctions sought by the applicant in the application are directed to restraints upon Lux and Mr Podger in two respects.  The first is a restraint in respect of making sales of any Lux product ‘to a potential customer who reasonably appears to suffer from an intellectual impairment’.  The second is a restraint from ‘persistently urging the potential customer to purchase a Lux product or maintaining a prolonged close physical presence to the potential customer’ in relation to such sales to such persons.  Neither of these foundations reflects the facts as found in this proceeding.  Moreover the application alleged that the relevant circumstances to be found in respect of the Standings was that they were illiterate to the extent they were unable to read or write other than simple words and their respective names, and were intellectually disabled so they were unable to understand contracts.  The injunctions do not seek to address the issue of illiteracy or of intellectual disability but rather address ‘intellectual impairment.’ 

140               The applicant submits that in the event the Court does not accept all of the applicant’s submitted findings of fact but nevertheless finds the respondents have breached the Act and that the general form of remedial orders are acceptable, a further opportunity should be offered to the parties to submit in relation to the final form of orders.  I do not consider that the injunctions in pars 5-8 of the application can be granted because the circumstances of the case and the breach as found do not support any injunction being made in such terms.  I have doubts whether any injunction can be crafted in the circumstances which could safely be regarded as able to be complied with.  On the other hand there are public interest considerations to be weighed which may support the issue of an injunction in the event one could be safely formulated.

141               In such circumstances I consider it is appropriate that the parties have the opportunity to consider these reasons and submit further on the issue of injunctive relief and its formulation in the light of these reasons. 

order for public notice

142               The applicant seeks an order that Lux cause to be published an advertisement in certain newspapers in terms and on occasions acceptable to the applicant.  This is a power to be exercised protectively and not by way of punishment: Hospitals Contribution Fund of Australia Ltd v Switzerland Australia Health Fund Pty Ltd (1987) 78 ALR 483 at 491; Australian Competition & Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 95 FCR 114 at [46]-[48].

143               The draft of the proposed notice before the Court addresses the position of ‘a consumer with an apparent intellectual disability’.  The notice is therefore drafted on a premise which was not made out in the proceeding.  Whether or not it is appropriate for an order requiring a notice to be made in the light of the findings of fact is a matter in relation to which the parties should be given the opportunity to further submit.

order for provision of compliance program

144               The applicant seeks an order that Lux implement a Trade Practices Corporate Compliance Program in a form acceptable to the applicant.  As presently drafted the proposed order addresses breaches of s 51AB and s 60.  This again goes beyond what has been found.  The parties should therefore have a further opportunity to submit in relation to the form of any such program and the appropriateness of any such order.

order concerning  findings of fact

145               The applicant additionally seeks an order pursuant to s 83 of the Act identifying findings of fact.  This is intended to preserve the option for Mrs Standing or the applicant on her behalf to seek the relief previously sought in pars 11 and 12 of the application.  Paragraph 11 sought a declaration that the Lux Contract is void ab initio.  Paragraph 12 sought in the alternative an injunction restraining Lux from taking any action to enforce any term of the Lux Contract.

146               Prior to the issue of the application, the applicant had not obtained the consent of Mrs Standing to make an application under s 87(1A)(b) on her behalf.  The respondents contend that the applicant seeks to have the Court make an order having the effect of giving it later the right to seek the relief previously sought in paragraphs 11 and 12 but after having obtained the consent of Mrs Standing.  They seek a declaration that the applicant has abandoned its cause of action in that respect and is estopped from issuing a second proceeding. 

147               I do not see why it is necessary for the applicant to seek any order for the effect of s 83 to be attracted.  These reasons identify the findings of fact made in them.  No such order is appropriate.

148               Whether or not the applicant has abandoned its cause of action in respect of such relief or whether it is estopped from seeking such relief is not something to be determined except upon the applicant seeking to assert the relevant cause of action. 

conclusion

149               For the above reasons orders will be made granting the declarations sought by the applicant in relation to unconscionable conduct.  The claims in respect of other conduct will be dismissed as will the application for an order of findings of fact.  Directions will be made to give the parties an opportunity to submit further in respect of injunctions, a public notice and a compliance program as well as costs.

Associate:

Dated:              16 July 2004