FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v UNJ Millenium Pty Ltd [2012] FCA 1123

THE COURT ORDERS THAT:

1.    The Court makes orders in terms of the draft Orders 1 to 14 proposed by the parties.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

EX TEMPORE REASONS FOR JUDGMENT

1    This proceeding is listed for final determination.

2    It concerns contentions on behalf of the Australian Competition and Consumer Commission (“ACCC”) that the respondent, UNJ Millenium Pty Ltd (the “Company”) has engaged in contraventions of the Trade Practices Act 1974 (Cth) and the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth). The ACCC, obviously enough, has filed an application supported by a statement of claim. In addition to those documents, the parties have filed an agreed statement of facts and also joint submissions in relation to matters of fact relevant to the contraventions, questions of principle and a common position about the relief and the form of orders.

3    In addition to that matter, the second respondent, Mr Park, who is a managing director of the first respondent and a 90 per cent shareholder in the Company has sworn and filed an affidavit dated 20 September 2012 deposing to a range of matters but in particular, by para 55, he swears to remorse in relation to the matters of fact in issue going to the contraventions. Also, at para 56, the second respondent deposes to his present appreciation of the scope and purpose of obligations cast upon the company by the Australian Consumer Law.

4    Having regard to the agreed statement of facts between the parties, I am satisfied that the pleaded representations arising out of the conduct are made out. Those representations are identified succinctly at paras 31 to 33 of the joint submission. I am also satisfied that the true position in relation to each of those representations is that set out in paras 34 to 36 of the joint submission which is also consistent with the agreed statement of facts. Having regard to those matters, I am satisfied that the contraventions identified at paras 37 to 40 of the joint submission are established.

5    The relief which arises out of these contraventions consists of a number of heads of relief.

6    The first category of relief relates to a series of declarations framed by the proposed draft order. In relation to that matter, I am satisfied that the questions alive are real, not hypothetical; the applicant has an interest in seeking the declarations; and there is in all relevant respects a contradictor which warrants the making of the declarations. In that regard, I note that the Full Court of this Court in Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56 expressed observations about this very question and in particular expressed the Court’s view at para 30 on the issue of the appropriateness of making declaratory orders in circumstances such as these, and the basis upon which a contradictor might be found to subsist where parties have a common position.

7    In addition, as to the injunctive relief, I am satisfied that having regard to the observations of Gummow, Hayne and Heydon JJ in Rural Press Limited v Australian Competition and Consumer Commission (2003) 216 CLR 53 at 95 there is utility in granting the injunctions.

8    The further ground of relief concerns the making of pecuniary penalties.

9    The joint submission sets out the relevant matters of principle to be applied concerning that question at paras 57 to 70 and I accept that those principles are accurately stated. In addition to that matter, I also note and have had regard to the observations of the Full Court in Global One Mobile Entertainment Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 134 where the principles relating to pecuniary penalty are set out at [113] to [124].

10    The joint submission on penalties then sets out observations about the application of those principles to the facts in this case. I have examined each of the considerations to be taken into account which are set out, in particular, at para 71 of the joint submission and I accept the force of the propositions put in relation to each of those topics. I have also had regard to the circumstances of mitigation which are set out at para 72 of the joint submission. I also take into account the matter deposed to by Mr Park concerning his remorse about the contraventions.

11    Nevertheless, of course, the position is that representations were made which induced consumers to acquire goods in circumstances where those representations were not true.

12    I accept that the joint position in relation to the proposed penalty is within the range which is appropriate having regard to all of the relevant factors. I also note that a compliance and education program forms part of the orders in relation to these matters with a view to ensuring that the Company fully adopts a “culture of compliance” and that contraventions as to the future in respect of these provisions will not occur. I have examined the content of the order and I am prepared to make orders in terms of the draft order. The one outstanding area of controversy concerns the question of the time for payment of the pecuniary penalty. I propose to order that the penalty be paid within 90 days.

13    There have been discussions between the parties about the time for payment but the parties were unable to agree about it in the end result. Nevertheless, it seems to me that 90 days is more than a reasonable period of time to pay the pecuniary penalty. I also order that the costs agreed to be paid the subject of the orders, be paid within 90 days.

14    I so order.

Associate:

Dated:    3 October 2012