FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v A.C.N. 099 814 749 Pty Ltd [2016] FCA 403

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application filed on 6 August 2015 is dismissed.

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

REASONS FOR JUDGMENT

REEVES J:

Introduction

1    Mr Wright, the person at the centre of this proceeding, is an accountant and registered tax agent. His primary place of business is in Alice Springs in the Northern Territory of Australia. For some years, he has been visiting a range of remote Aboriginal communities throughout South Australia, the Northern Territory and Western Australia, offering to prepare and lodge taxation returns for the residents of those communities (referred to hereafter as the “tax return services”). His usual practice was to prepare the tax returns himself and then cause his company, Adata (Vic) Pty Ltd, which is also a registered tax agent, to lodge them.

2    Unaware of the introduction of the unsolicited consumer agreement provisions (the UCA provisions) when the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) (the ACL and the CCA, respectively) commenced on 1 January 2011, Mr Wright continued to make his visits to these communities during 2012 and 2013 and to supply his tax return services. By that time, the majority of the people to whom he supplied those services were existing clients.

3    Mr Wright’s activities in those years attracted the attention of the Australian Competition and Consumer Commission (the Commission). After an investigation using its powers under s 155 of the CCA, the Commission commenced this proceeding. In it, the Commission alleges that Mr Wright contravened the UCA provisions of the ACL by supplying his tax return services in the manner described above. The Commission identified 191 clients living in the remote communities which Mr Wright visited who, it claims, were supplied such services in contravention of those provisions.

The unsolicited consumer agreement provisions

4    This matter raises a number of questions about the construction of the UCA provisions of the ACL (Div 2 of Part 3-2). As noted above, those provisions were introduced when the CCA and ACL came into effect on 1 January 2011. It is therefore convenient to outline the import of those provisions at the outset.

5    Division 2 of Part 3-2 begins at s 69. That section defines what an unsolicited consumer agreement is. It relevantly provides:

69 Meaning of unsolicited consumer agreement

(1)    An agreement is an unsolicited consumer agreement if:

(a)    it is for the supply, in trade or commerce, of goods or services to a consumer; and

(b)    it is made as a result of negotiations between a dealer and the consumer:

(i)    in each other’s presence at a place other than the business or trade premises of the supplier of the goods or services; or

(ii)    by telephone;

whether or not they are the only negotiations that precede the making of the agreement; and

(c)    the consumer did not invite the dealer to come to that place, or to make a telephone call, for the purposes of entering into negotiations relating to the supply of those goods or services (whether or not the consumer made such an invitation in relation to a different supply); and

(d)    the total price paid or payable by the consumer under the agreement:

(i)    is not ascertainable at the time the agreement is made; or

(ii)    if it is ascertainable at that time-is more than $100 or such other amount prescribed by the regulations.

…

(Emphasis in original)

6    The expression “consumer” which appears throughout s 69 above is defined in s 3(3) of the ACL in the following terms:

A person is taken to have acquired particular services as a consumer if, and only if:

(a)    the amount paid or payable for the services, as worked out under subsections (4) to (9), did not exceed:

(i)    $40,000; or

(ii)    if a greater amount is prescribed for the purposes of subsection (1)(a) - that greater amount; or

(b)    the services were of a kind ordinarily acquired for personal, domestic or household use or consumption.

(Emphasis in original)

7    For reasons that I will elaborate in more detail later, the Commission contended, and Mr Wright disputed, that the agreements made with each of the 191 consumers in this matter fell within the terms of the above definition. While it is not in dispute that each of the agreements was for “the supply, in trade or commerce, of … services”; that each of the 191 persons was a “consumer” within the terms of ss 69(1)(a) and 3(3) above; and that the dealings with each of the 191 consumers were conducted away from both Mr Wright’s and Adata (Vic)’s usual place of business or trade, there is a dispute about at least the following matters:

(a)    whether any of the agreements to perform the tax return services was made as a result of “negotiations” with any of the 191 consumers within the terms of s 69(1)(b) above;

(b)    whether any of the 191 consumers invited Mr Wright to “come to that place” within the terms of s 69(1)(c) above; and

(c)    whether the total price paid or payable under any of the agreements was for an amount of more than $100 within the terms of s 69(1)(d) above.

8    Section 70 (also within Div 2) is important because it contains what is often described as a reverse onus provision. It states:

70 Presumption that agreements are unsolicited consumer agreements

(1)    In a proceeding relating to a contravention or possible contravention of this Division (other than a criminal proceeding), an agreement is presumed to be an unsolicited consumer agreement if:

(a)    a party to the proceeding alleges that the agreement is an unsolicited consumer agreement; and

(b)    no other party to the proceeding proves that the agreement is not an unsolicited consumer agreement.

(2)    In a proceeding relating to a contravention or possible contravention of this Division (other than a criminal proceeding), it is presumed that a proposed agreement would be an unsolicited consumer agreement if it were made if:

(a)    a party to the proceeding alleges that the proposed agreement would be an unsolicited consumer agreement if it were made; and

(b)    no other party to the proceeding proves that the proposed agreement would not be an unsolicited consumer agreement if it were made.

(Emphasis in original)

9    In its amended statement of claim, the Commission raised the rebuttable presumption above by alleging that the agreements Mr Wright entered into with the 191 consumers mentioned above were all unsolicited consumer agreements. Under s 70(1)(b) of the ACL, the burden of proof on that issue therefore rested on the respondents to prove that the agreements in question were not unsolicited consumer agreements. Mr Wright sought to discharge that burden of proof on behalf of his company, Adata (Vic), and himself.

10    At this juncture, it is convenient to mention that, during the period in issue in this proceeding, Mr Wright also operated another company called Adata (Carriers) Pty Ltd. After the Commission commenced this proceeding, Mr Wright caused the name of Adata (Vic) Pty Ltd to be changed to A.C.N. 099 814 749 Pty Ltd and the name of Adata (Carriers) Pty Ltd to be changed to A.C.N. 072 129 321 Pty Ltd. Despite these name changes, for convenience, throughout these reasons, I will refer to these companies as Adata (Vic) and Adata, respectively. It should also be recorded that, while Adata was initially joined as a respondent in this proceeding, at the commencement of the trial, the Commission discontinued its claim against that company.

11    The meaning of the expressions “dealer” and “negotiations” (see ss 69(1)(b) and (c)) are defined in ss 71 and 72 of Div 2, respectively. Those definitions are as follows:

71    Meaning of dealer

A dealer is a person who, in trade or commerce:

(a)    enters into negotiations with a consumer with a view to making an agreement for the supply of goods or services to the consumer; or

(b)    calls on, or telephones, a consumer for the purpose of entering into such negotiations;

whether or not that person is, or is to be, the supplier of the goods or services.

72    Meaning of negotiation

A negotiation, in relation to an agreement or a proposed agreement, includes any discussion or dealing directed towards the making of the agreement or proposed agreement (whether or not the terms of the agreement or proposed agreement are open to any discussion or dealing).

(Emphasis in original)

12    Putting aside the disputed issue described in [7(a)] above relating to the word “negotiations” and the issue identified in the next sentence, there is no dispute that Mr Wright personally dealt with each of the 191 consumers in question and he was, therefore, at all times performing the role of the dealer as described in s 71 above. However, there is a dispute as to whether he supplied the tax return services using Adata (Vic) or Adata as his agent, or whether Adata (Vic) supplied those services and Mr Wright was knowingly concerned in the supply of the services by Adata (Vic).

13    Thereafter, Div 2 sets out a series of requirements relating to unsolicited consumer agreements. Some of these requirements apply to a dealer and others apply to a supplier. The apposite requirements upon which the Commission relies in this case are set out below in the order in which they appear in Div 2.

(a)    Section 73 relates to the permitted hours for negotiating an unsolicited consumer agreement. It relevantly provides:

73 Permitted hours for negotiating an unsolicited consumer agreement

(1)    A dealer must not call on a person for the purpose of negotiating an unsolicited consumer agreement, or for an incidental or related purpose:

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

(b)    before 9 am on any other day; or

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

(Note omitted; emphasis in original)

(b)    Section 76 requires a dealer to inform a person of the termination period for the agreement. It provides:

76 Informing person of termination period etc.

A dealer must not make an unsolicited consumer agreement with a person unless:

(a)    before the agreement is made, the person is given information as to the following:

(i)    the person’s right to terminate the agreement during the termination period;

(ii)    the way in which the person may exercise that right;

(iii)    such other matters as are prescribed by the regulations; and

(b)    if the agreement is made in the presence of both the dealer and the person-the person is given the information in writing; and

(c)    if the agreement is made by telephone-the person is given the information by telephone, and is subsequently given the information in writing; and

(d)    the form in which, and the way in which, the person is given the information complies with any other requirements prescribed by the regulations.

…

(Note omitted; emphasis in original)

(c)    Section 78 requires a dealer to give the consumer a copy of the agreement that was negotiated. It relevantly provides:

78 Requirement to give document to the consumer

(1)    If an unsolicited consumer agreement was not negotiated by telephone, the dealer who negotiated the agreement must give a copy of the agreement to the consumer under the agreement immediately after the consumer signs the agreement.

…

(Note omitted; emphasis in original)

(d)    Section 79 then imposes a set of requirements on the supplier (as distinct from the dealer) under all unsolicited consumer agreements. It provides:

79 Requirements for all unsolicited consumer agreements etc.

The supplier under an unsolicited consumer agreement must ensure that the agreement, or (if the agreement was negotiated by telephone) the agreement document, complies with the following requirements:

(a)    it must set out in full all the terms of the agreement, including:

(i)    the total consideration to be paid or provided by the consumer under the agreement or, if the total consideration is not ascertainable at the time the agreement is made, the way in which it is to be calculated; and

(ii)    any postal or delivery charges to be paid by the consumer;

(b)    its front page must include a notice that:

(i)    conspicuously and prominently informs the consumer of the consumer’s right to terminate the agreement; and

(ii)    conspicuously and prominently sets out any other information prescribed by the regulations; and

(iii)    complies with any other requirements prescribed by the regulations;

(c)    it must be accompanied by a notice that:

(i)    may be used by the consumer to terminate the agreement; and

(ii)    complies with any requirements prescribed by the regulations;

(d)    it must conspicuously and prominently set out in full:

(i)    the supplier’s name; and

(ii)    if the supplier has an ABN-the supplier’s ABN; and

(iii)    if the supplier does not have an ABN but has an ACN-the supplier’s ACN; and

(iv)    the supplier’s business address (not being a post box) or, if the supplier does not have a business address, the supplier’s residential address; and

(v)    if the supplier has an email address-the supplier’s email address; and

(vi)    if the supplier has a fax number-the supplier’s fax number;

(e)    it must be printed clearly or typewritten (apart from any amendments to the printed or typewritten form, which may be handwritten);

(f)    it must be transparent.

(Note omitted; emphasis in original)

(e)    Section 86 prohibits a supplier from supplying services under an unsolicited consumer agreement within 10 business days after the agreement was made, or the consumer was provided with a copy of the agreement. It provides:

86 Prohibition on supplies etc. for 10 business days

(1)    The supplier under an unsolicited consumer agreement must not:

(a)    supply to the consumer under the agreement the goods or services to be supplied under the agreement; or

(b)    accept any payment, or any other consideration, in connection with those goods or services; or

(c)    require any payment, or any other consideration, in connection with those goods or services;

during the period of 10 business days starting:

(d)    if the agreement was not negotiated by telephone-at the start of the first business day after the day on which the agreement was made; or

(e)    if the agreement was negotiated by telephone-at the start of the first business day after the day on which the consumer was given the agreement document relating to the agreement.

…

(2)    If the supplier supplies goods to the consumer in contravention of this section, the consumer has the same rights in relation to the goods as if the goods were unsolicited goods.

…

(3)    If the supplier supplies services to the consumer in contravention of this section, the consumer has the same rights in relation to the services as if the services were unsolicited services.

…

(Notes omitted; emphasis in original)

14    With the exception of s 86, which sets out the consequences of a contravention within the section itself, (see subsections (2) and (3) above), the other four provisions above are stated to be pecuniary penalty provisions which may be enforced by proceedings under s 224 of the ACL. Notably, under s 224(1)(e) of the ACL, a person will have contravened these pecuniary penalty provisions if they have been “in any way, directly or indirectly, knowingly concerned in, or party to, the contravention”. This is relevant in this case because, as is already noted above, the Commission has relied upon this provision to allege that Mr Wright was directly or indirectly, knowingly concerned in, or party to, the contraventions by his company, Adata (Vic).

15    The Commission claims that Adata (Vic) and Mr Wright contravened the above provisions by variously:

(a)    conducting negotiations with some of the 191 consumers on a Sunday;

(b)    failing to inform any of the 191 consumers of their right to terminate the agreement in accordance with s 76 (above);

(c)    failing to give any of the 191 consumers a copy of the agreement in accordance with s 78 (above) and, by necessity, failing to comply with the requirements of s 79 (above); and

(d)    failing to provide any of the 191 consumers with the 10 business days “cooling off” period provided for in s 86 (above).

16    Finally, it is necessary to mention ss 69(3), 69(4) and s 94 of the ACL, together with the Competition and Consumer Regulations 2010 (Cth) (the CC Regulations), if only to make it clear that none of them specifically applies in this case. Section 94 allows regulations to be made that specify circumstances, agreements or conduct to which the UCA provisions do not apply. Sections 69(3) and 69(4) allow for particular agreements to be specified as unsolicited consumer agreements or not, as the case may be. Accordingly, reg 81 of the CC Regulations specifies five kinds of agreement which are not unsolicited consumer agreements under s 69(4) of the ACL. They include a “business contract” as defined, a “discontinued negotiations agreement” as defined, an agreement made in the course of a “party plan event” as defined, a renewable agreement of the same kind and a subsequent agreement of the same kind. It is to be noted that no agreements have been specified in the CC Regulations under s 69(3), that is, agreements that are unsolicited consumer agreements. Then reg 88 provides that various sections of the UCA provisions (76, 79(c), 82(3)(a), 82(3)(b), 82(3)(d) and 86) do not apply in circumstances where a state of emergency has been declared under a law of the Commonwealth, a State or a Territory and a person enters into an “emergency repair contract” as defined therein. Further, reg 89 provides that s 86 of the UCA provisions does not apply in circumstances where the unsolicited consumer agreement is for the supply of “an electricity or gas service from a supplier to a premises” and that service meets certain defined conditions. Finally, reg 95 provides that s 86(1)(a) of the UCA provisions does not apply to the supply of goods to a consumer under an UCA if the total price payable for the goods under that agreement is $500 or less.

A summary of the issues that arise

17    The Commission essentially identified four main issues for determination in this matter as follows:

(a)    whether some or all of the 191 agreements in question were unsolicited consumer agreements;

(b)    if so, who supplied the services under those agreements, that is Mr Wright or Adata (Vic);

(c)    whether that person contravened the various provisions outlined in [13] above; and

(d)    if so, what relief should be granted against that person.

18    Before outlining Mr Wright’s position on these issues, it is worth recording that he has been self-represented throughout the entirety of this proceeding. He has no legal training and his case has been largely responsive to the Commission’s case. Nonetheless, as the trial proceeded, Mr Wright raised at least three key contentions, the first of which directly responded to the first of the main issues identified by the Commission above. They were that:

(a)    none of the agreements concerned was an unsolicited consumer agreement;

(b)    no services were supplied to 43 of the 191 consumers in question in the period 2012–2013 inclusive; and

(c)    he had complaints about the manner in which the Commission conducted the s 155 examination, particularly whether, or not, he had made any admissions during the examination.

19    It can be seen from this summary that the parties both identified the same main issue in this proceeding as: whether, or not, any of the 191 agreements in question was an unsolicited consumer agreement within the terms of Div 2 of Part 3-2 of the ACL. The resolution of that issue essentially revolves around the proper construction of the UCA provisions of the ACL, particularly the definition as to what constitutes an unsolicited consumer agreement in s 69 and, specifically, s 69(1)(b) and 69(1)(c) thereof.

The factual background in more detail

Introduction

20    Before turning to consider the main issue identified above, it is convenient to describe the factual background to this proceeding in more detail. It is appropriate to begin that description by identifying the communities Mr Wright visited in 2012 and 2013, then to describe how he conducted himself when visiting those communities and how he went about informing the people living there that he could supply the tax return services to them and, finally, to describe how those services were supplied and paid for by the 191 consumers concerned. In relation to the latter aspect, I will briefly describe the Centrepay Scheme which was utilised by many of the 191 consumers to pay for the tax return services. Thereafter I will briefly mention a number of other issues which arose during the trial, including the conduct of the Commission’s investigation and examination under s 155 of the CCA which has already been mentioned above (at [18(c)]).

The communities visited by Mr Wright

21    Table A below sets out the names of 22 communities that Mr Wright visited (putting aside the one unknown location), together with the number of consumers to whom he supplied his tax return services at each of them during the relevant period.

Table A

22    Ten of the communities in Table A are located in the Northern Territory. Apart from the towns of Katherine and Tennant Creek, with populations of about 6,000 and 3,000 respectively, the other communities ranged in population from just over 100 residents (Finke/Aputula) to about 1,200 residents (Arlparra Store/Utopia). Nine communities in Table A are located in Western Australia. They are of a similar size range to those in the Northern Territory, the largest being Halls Creek with a population of about 1,200 people. The three communities in Table A that are located in South Australia are all within the Anangu Pitjantjatjara Yankunytjatjara lands in the north of the State. Each of them has a population of about 300 residents.

23    Mr Wright gave evidence that, before visiting one of these communities, his practice was to make contact with a person working in a government office or similar agency in the community. He would then send that person details of his planned visit by fax or email, together with a flyer that could be displayed on a public notice board in the community. He tendered a copy of the kind of flyer he commonly used. That flyer was headed “Accountancy & Taxation Returns” and contained his name and contact details. It also included a space next to the words “Client Attendance & Services” where the dates of his pending visit would be inserted. Notably, the flyer he tendered also stated that he would charge a fee of $100 for his services. On this issue, the Commission also tendered a copy of a flyer which it alleged Mr Wright had circulated in these communities in 2012 and 2013. The only substantive difference between the two flyers was the omission from the latter of any reference to a fee of “$100.00”, or indeed any fee, for the tax return services.

24    Mr Wright travelled to each community in his personal vehicle. Where it was necessary, he obtained permits to enter the community. For example, he obtained permits to enter the Central Reserve in the Northern Territory for the period of 10 October 2012 to 31 October 2012, and the period of 1 August 2013 to 31 October 2013. He also obtained a permit to enter the Anangu Pitjantjatjara Yankunytjatjara lands in South Australia for the period 26 July 2012 to 26 October 2012.

25    When he arrived at a community, Mr Wright said that his general practice was to establish a temporary office, either in one of the government offices mentioned above, or to set up a kiosk in, or near, the main service area of the community. He would then supply his tax return services from that location. He said he would sometimes erect an A-frame sign beside the road, or outside the building where he was planning to see his clients. He said he would then:

… await the approach or arrival of any persons desiring to engage and purchase my services and make appointments, or to see – sometimes they – they phone me, and I see it later or – or they just wait and – and come in because they’ve seen the notice that I was there to see such persons at their instigation and request at the temporary office or kiosk.

26    Mr Wright described how he conducted himself in some of the particular communities listed in Table A. In Santa Teresa, in the Northern Territory, he said he usually operated from the Catholic Church Mission complex. However, on one occasion, when a room was not available in that complex, he said he operated from the laundry room. He said that, generally, he was invited to Santa Teresa by existing clients. He said:

Support by local leaders, including health leaders, church missionaries, education officers. They would contact me regarding the date because they didn’t want it to be right on the school holidays, because they wouldn’t have their paperwork available.

A number of them emailed me, but I can’t go specifically which one did or did not… I don’t think there’s anything else I wish to say about – except that the clients always approached me. I stayed there. You could call it an office or a kiosk or – for me it was a permanent consistent place of business, and they always approached me. I didn’t have time – there was no benefit for me to go around knocking on doors.

27    In Warburton, in Western Australia, Mr Wright said he used a room in the offices of the Warburton Community Incorporated. He said that his invitation to visit Warburton came from Mr John Damian McLean, who was the Community Development Advisor for the Warburton Community Inc. Mr Wright tendered a letter from Mr McLean which stated:

Wayne Wright has the temporary use of a room in the Offices of the Warburton Community over a period of several days each year, when he is in the Community.

People respond to a notice advertising his presence in the Office and availability to assist with tax returns.

… Wayne Wright does not and has never, to my knowledge, ever approached people or solicited their custom outside this arrangement with the Community.

28    In Balgo, in Western Australia, Mr Wright said he operated from the rear of the Wirrimanu Aboriginal Corporation (WAC) offices. Mr Wright described this office in the following terms:

It’s a large building with a shelter, adjacent to the store – kiosk store. They invited me to use a more central room in the building, but I just used where I had access to power, and it was under shelter, so some of the statements are saying it’s outside. It’s not strictly. It’s under shelter. There’s table and chairs there. The clients always approached me.

He said that prior to his arrival, a sign would be placed in the window of the WAC offices, saying “Wayne Wright coming to Balgo on [certain dates]”. He said that his invitation to visit Balgo came from Mr George Lee, who was the Shire President.

29    In Lajamanu, in the Northern Territory, Mr Wright said he either used a small office in the Community Council building, or a room in the community’s Education Centre. He said he was invited to Lajamanu by Mr Adrian Dixon, the Shire President, and by Mr Norbert Patrick, the Shire Vice-President.

30    In Kalkarindji, in the Northern Territory, Mr Wright said he used the Community Services building where the Centrelink office was located. He claimed he was invited to Kalkarindji as well, but could not remember who invited him.

31    In Titjikala, in the Northern Territory, Mr Wright said he would set up a table and chairs near the front door of the community’s Knowledge Centre where there was a power point. He said he would put up a cardboard sign with the words “Wayne Wright” written on it with a marker pen. He explained how he was originally invited to Titjikala, in the following terms:

Well, Santa Teresa was the first place that I went to, longstanding. Titjikala is adjacent, as you know, your Honour. It didn’t happen for a long time, and the way it happened was a phone call from – I can’t remember her name, but she was an office worker and, you know, “Why don’t you come to us as well?” That was the way it was put, the invitation there, and when I had arrived – it’s a nice little community town, and people would know by my vehicle that that’s why I was coming. They knew from beforehand.

32    In Arlparra Store/Utopia in the Northern Territory, Mr Wright said he set up at a kiosk “at the front of the store”. He mentioned a number of people who he claimed had invited him to come to Arlparra, including Ms Alison Ross, Mr Andrew Ross and Ms Cindy Kunoth.

33    In Jameson, in Western Australia, Mr Wright said he worked from “what was used as a Centrelink office. Just a little kiosk - just nothing - enclosed, inside, just a little room as you enter”. He explained that he was invited to Jameson by way of an email from a person named Mr Michael Rickson.

34    In Engawala, in the Northern Territory, Mr Wright said he worked from a table outside the Women’s Centre. He said he received an invitation in the following terms:

I will go to Engawala. A direct invitation by Peter Bastaville. He came into my office and he said, “Wayne, I would like you to come out, do tax returns. But come early, come very early. Like June, not July.” And that’s how I did it the first time.

35    In Finke/Aputula, in the Northern Territory, Mr Wright said he worked from an old hotel that had been converted into offices for the Finke Shire Council.

36    In Billiluna, in Western Australia, Mr Wright said he worked in a shelter outside the office. He said he had invitations to visit from an “officer worker from the school”.

How the taxation returns were prepared and lodged

37    In his defence, the contents of which he later confirmed in his evidence, Mr Wright described the way in which he engaged with each individual client and thereafter prepared and lodged a taxation return for them, as follows:

(e)    [he] would, upon receiving a request to engage his services, enter into a partly oral and partly written contract with any person wishing to engage his services and obtain Tax Return services on the following terms:

1.    [he] would provide Tax Return Services to the consumer; and

ii.    the consumer would pay to [him] a $100 fixed fee per tax return lodged.

(f)    [he] would interview each client in order to obtain sufficient and appropriate instructions to enable him to perform any contracted Tax Return Services;

(g)    [he] would then, in accordance with the instructions and information supplied by the client, prepare the client’s annual income tax return and arrange for lodgement by [Adata (Vic)], as his agent;

(h)    [he] would receive payment from the client either directly, or in some instances, where a client was not in a position to pay the fixed fee upfront or immediately, [Adata], as [his] agent, received payment for Tax Return Services performed by him through what was known as the ‘Centrepay Scheme’ operated by the Department [of Human Services], a scheme which involved the Department deducting monies periodically from a person’s Centrelink benefits in order to effect payment to that person’s third party creditors.

(Errors in original)

38    It was in this way that Mr Wright claimed that he personally supplied all the tax return services and received all of the payments and that Adata (Vic) and Adata were merely acting as his agents in lodging the returns and in recovering payment through the Centrepay Scheme, respectively. The Commission disputed this characterisation of how the services were supplied and paid for. As I have already mentioned above (at [14]), it claimed that Adata (Vic) was the supplier of the services and that Mr Wright was knowingly concerned in the alleged contraventions of the UCA provisions by that company.

The 191 consumers and how they paid for the taxation services

39    Table B below summarises the salient features of Mr Wright’s evidence about the 191 consumers including: the consumer’s initials (to preserve their privacy); where the consumer was provided the tax return services; whether the consumer was an existing or new client in 2012 or 2013; and whether Mr Wright’s records showed that a taxation return was prepared or lodged for that consumer in those years.

TABLE B

40    The fourth column of Table B above shows that 26 of the persons to whom Mr Wright supplied tax return services in either 2012 or 2013 were new clients and the balance were existing clients. Two other aspects of Table B should be noted. First, while it lists 193 consumers (not 191), one of them, number 159, is recorded as a duplicate entry and the Commission accepted in its closing submissions that two others (numbers 157 and 174) related to the same person. Secondly, the two shaded entries (numbers 50 and 127) are explained in [99] below.

The Centrepay Scheme

41    As was mentioned in Mr Wright’s defence above (at [37]), during 2012 and 2013, aside from a small number of the 191 consumers who paid cash for their tax return services, the remainder paid for those services through the Centrepay Scheme. It is therefore necessary to briefly explain how that Scheme operated. Ms Leigh Allison dealt with that matter in her evidence. She is the Director of the Branch of the Department responsible for managing the Scheme. She summarised the Scheme in the following terms:

Centrepay is a voluntary facility which enables Department customers to pay for goods and services to third party service-providers through pre-arranged deductions from their welfare benefits …

42    According to Ms Allison, a service provider may apply to participate in the Centrepay Scheme by submitting an application form. To be accepted, an applicant had to be a legal entity with an Australian Business Number, to provide an address and contact details, and to provide goods or services to customers in Australia which fell within at least one of the recognised categories of “service reasons” in the Centrepay Policy. She said one of the “service reasons” was “Professional Services”, which included “tax agent fees”.

43    Ms Allison said Adata applied to participate in the Centrepay Scheme in December 2011. Its application was approved by the Department in January 2012 and records showed that it was a participant from that time until October 2013. She said that during that period, it submitted Centrepay Deduction Authority forms to the Department relating to 190 customers. She described a Centrepay Deduction Authority form as an authorisation by a customer for payments to be deducted from that customer’s welfare benefit and paid directly to a service provider’s bank account. In this way, Adata, not Mr Wright, received all the payments from those 190 clients.

44    Mr Wright said in his evidence that when he visited a community, he would take a number of Centrepay Deduction Authority forms with him. “Adata Pty Ltd” was pre-printed on those forms as the “service provider” and the stated reason for the payment was pre-printed on the forms as “Accounting & Taxation”. The details that then needed to be completed on the form included:

(a)    the client’s personal details;

(b)    the type of Centrelink payment from which the deduction was to be taken (for example, Pension, Newstart Allowance, Family Tax Benefit);

(c)    the amount that was to be deducted each fortnight;

(d)    the target amount (that is, the total amount to be deducted before the deductions were to cease); and

(e)    the client’s signature.

45    As set out below, a number of Mr Wright’s clients gave evidence that the only involvement they personally had in completing this form was to sign it. They said the remainder of the information on the form was inserted by Mr Wright. In most cases, once a form was signed, Mr Wright took it with him and lodged it on the client’s behalf. In some instances, he would lodge it by facsimile.

The amounts charged for the tax return services

46    Mr Wright’s evidence was that he charged a fixed fee of $100 to each client for the tax return services he provided. To prove this, he tendered tax invoices for many of the 191 consumers the subject of this proceeding (see Table B above). Each invoice contained the consumer’s name, the date that the services were rendered, and the amount of $100 as the fee due and payable.

47    Whilst I am dealing with this issue, it is convenient to record some other aspects of the evidence that have a bearing on it. First, of the 190 clients for whom Centrepay Deduction Authority forms had been submitted by Adata (see [43]) above, the amounts to be deducted in accordance with those forms varied from between $110 and $1,100. Mr Wright’s explanation as to why those amounts exceeded the $100 fee he claimed he charged was that all of the amounts in excess of $100 were for “outstanding accounts receivable” for work done in previous years. He explained:

… but it’s only $100 that applies to the current year, or that’s previously accounts receivable, so therefore it’s a fact the Centrepay document does not represent an invoice. It’s only collecting - it’s a plan. It’s collecting the items as on the accounts receivable; what’s booked up previously and also in the current year. They pay $100 cash. It’s a complete transaction, even if there’s some there from previous years they didn’t pay for, there’s still accounts receivable booked up, and therefore it’s unfair to always assume - and I’ve said in the witness box - I didn’t feel any of those Centrepay - well, ..... most of them - it’s not - it is any of them. None of them represent the invoiced amount.

They’re all from previous or current accounts receivable, and that’s what it is. It’s a person who goes in to a shop and they pay cash. They enter a transaction. They go in and book it up. ..... consumer affairs. They book it up and then it becomes a booked accounts receivable to the business. I think that’s the only one that I wanted to really clarify, and thank you for the opportunity to ..... I said yesterday.

(Emphasis added; omissions in original)

The evidence of the 12 Commission witnesses

48    At trial, the Commission tendered witness statements containing the evidence of 12 of the 191 consumers mentioned in Table B above. Five of these 12 witnesses were from Titjikala in the Northern Territory, and seven were from Balgo in Western Australia. Their evidence is summarised in the following paragraphs.

Ms Annette Gilligan

49    Ms Gilligan is 29 years old and has lived at Titjikala her whole life. She can read and write English. She first met Mr Wright in 2012, when he came to the Titjikala community. She did not know in advance that he was coming to Titjikala and she did not invite him to the community. She said she first saw him setting up a small table outside the Community’s Knowledge Centre, from which he conducted business. As well, Mr Wright set up a cardboard sign outside the Knowledge Centre which read “Wayne Wright”.

50    Ms Gilligan’s evidence was that she had her tax return prepared by Mr Wright on the last occasion he visited Titjikala. She said the process took about five minutes. She said she did not know Mr Wright was acting on behalf of a company, she only knew him as Wayne Wright.

51    Ms Gilligan said Mr Wright told her it would cost $200 to have her tax return prepared. He asked for $100, which she paid in cash. While she initially thought that she was given a signed receipt, she later stated that she believed she was not given one. The balance was paid through the Centrepay Scheme.

52    The Commission showed Ms Gilligan a Centrepay Deductions Authority form, which contained her name and details. Ms Gilligan said she did not complete that form, including the deductible amount of $110. She said she did not remember signing the document. Her understanding was that the deductible amount on the form was the amount Mr Wright would charge her for preparing her tax return in addition to the $100 she said she paid him in cash.

53    Ms Gilligan said that Mr Wright told her she would receive her refund in three weeks, but he did not say how much the refund would be. However, she said she could not remember ever receiving a refund. She said that she tried to contact Mr Wright to find out about the refund, but was never able to do so.

54    As stated above, Mr Wright relied upon a number of tax invoices which he said were copies of the invoices he provided to his clients. Ms Gilligan was shown an invoice with her name on it, dated 2 August 2012, for an amount of $100. She said she had not seen that document before. She said Mr Wright did not give her that document when he prepared her tax return, and nor did he send it to her afterwards.

Mr Lionel Davis, also known as Lionel Golder

55    Mr Davis is 27 years old and has lived at Titjikala for about five years. He can read and write English “a little bit”. Although Mr Wright went to the Titjikala community a few times, Mr Davis only met him there once in 2013. He did not know in advance that Mr Wright was coming to Titjikala and he did not invite him to the community. He said his partner told him about Mr Wright’s presence in the community.

56    Mr Davis said he had Mr Wright prepare his tax return in 2013. He said Mr Wright had set up a table and chairs outside the Community’s Knowledge Centre, together with a sign reading “Wayne Wright”. Mr Davis said he did not know Mr Wright was part of a company. While Mr Davis could not remember how long he spent with Mr Wright, he said he thought it was a very short time.

57    The Commission showed Mr Davis a Centrepay Deductions Authority form, which contained his details. Mr Davis said that he completed all the details on that form except the deductible amount of $110. He did not understand what the deductible amount was, as that was the first time he had completed a Centrepay Deductions Authority form. He said he could not remember Mr Wright telling him how much he would be charged for the tax return services, nor how much refund he would receive. As with Ms Gilligan, Mr Davis could not recall having received a refund.

58    The Commission showed Mr Davis a tax invoice that Mr Wright claimed he had provided to him. That invoice had his name on it, it was dated 29 July 2013, and it was for an amount of $100. Mr Davis’ evidence was that he had not seen that document before. He said Mr Wright did not give that invoice to him when he prepared his tax return, nor did he send it to him afterwards.

Ms Lisa Mulda

59    Ms Mulda is 35 years old and has lived at Titjikala her whole life. Ms Mulda worked at the childcare centre in Titjikala. She can “read and write English sometimes but [she is] not too confident”. She said she knew of Mr Wright because he would come to the Titjikala community to prepare tax returns for people. She recalled meeting him twice, but it was only in 2012 that he prepared her tax return. On those occasions, Mr Wright set up a table outside the Community’s Knowledge Centre, together with a sign which read “Wayne Wright”.

60    Ms Mulda’s evidence was that when Mr Wright prepared her tax return in 2012, there was a lot of people waiting to speak to Mr Wright. She said she spent about five minutes with him and she did not know he was acting on behalf of a company. She only knew him as Wayne Wright.

61    Ms Mulda said that Mr Wright completed a tax return for her and she signed it. She also recalled completing a Centrepay Deductions Authority form and signing it. She could not remember Mr Wright telling her how much she would be charged for the tax return services, although she did recall being told that some money would be deducted from her refund. She did not lodge the tax return herself. Instead, Mr Wright took the return with him. She received a refund of about $1,000. She said that she thought she should have received more.

62    The Commission showed Ms Mulda a tax invoice that Mr Wright claimed he had provided to her. That invoice had her name on it, it was dated 2 August 2012, and it was for an amount of $100. Ms Mulda’s evidence was that she had not seen that document before. She said Mr Wright did not give it to her when he prepared her tax return and nor did he send it to her afterwards.

63    Ms Mulda said that during 2015 she received a number of documents from Mr Wright in the mail, including: an invoice for the amount of $95; a Notice of Assessment from the Australian Taxation Office (ATO) for the year ended 30 June 2010; a Notice of Assessment from the ATO for the year ended 30 June 2011; a Notice of Assessment from the ATO for the year ended 30 June 2012; a business card from Mr Wright; and a form prepared by Mr Wright authorising him to prepare and lodge her taxation return. Ms Mulda said that while she began to complete this form, she ultimately decided not to do so.

Ms Priscilla Inkamala also known as Priscilla Moneymoon

64    Ms Inkamala is 27 years old and has lived at Titjikala her whole life. She can read and write English “a little bit”. She said she only met Mr Wright once in 2013, when he prepared her tax return. She met him outside the Community’s Knowledge Centre, where “lots of other people” were also waiting to have their tax returns prepared. She said that she did not invite Mr Wright to the community to prepare her tax return.

65    Ms Inkamala recalled that she completed a Centrepay Deductions Authority form except that she did not write the target amount of $110 on that form.

66    The Commission showed Ms Inkamala a tax invoice that Mr Wright claimed he provided to her. That invoice had her name on it, it was dated 1 July 2013, and it was for an amount of $100. Ms Inkamala said that she had not seen that document before. She said Mr Wright did not give that invoice to her when he prepared her tax return, and nor did he send it to her afterwards.

Ms Karen Inkamala

67    Ms Inkamala is 43 years old and has lived at Titjikala her whole life. She can only “read and write English sometimes”. She said she only met Mr Wright once in 2013, when he prepared her tax return. She said her husband, Mr Kevin Moneymoon, and her daughter, Ms Priscilla Inkamala, also saw Mr Wright on the same day. She said that she did not invite Mr Wright to the community to prepare her tax return.

68    The Commission showed Ms Inkamala a Centrepay Deductions Authority form which contained her details. Ms Inkamala said that the only parts of that form that were in her handwriting were her name and her signature. While the target amount on that form was $210, Ms Inkamala said that Mr Wright did not tell her how much it would cost to prepare her tax return.

69    The Commission also showed Ms Inkamala a tax invoice Mr Wright claimed he provided to her. That invoice had her name on it, it was dated 29 July 2013, and it was for an amount of $100. Ms Inkamala said that she had not seen that document before. She said Mr Wright did not give that invoice to her when he prepared her tax return and nor did he send it to her afterwards.

Ms Angela Lee

70    Ms Lee is 47 years old and has lived in Balgo her whole life. She can read and write English “a little bit”. She said she knew who Mr Wright was because he travelled to the Balgo community “lots of times” to prepare tax returns for the residents there. She said he prepared her tax returns for each of the years from 2005 to 2011 when she worked as a Teacher’s Aide at the local school.

71    Ms Lee said that Mr Wright would erect signs in the window of the WAC offices, which said “Wayne Wright coming to Balgo on this date”. She said he would then set up a temporary office at the back of the WAC offices. Ms Lee said she had Mr Wright prepare her tax return on the last occasion he went to Balgo, which was 2012. She said he did not tell her that he worked for a company, and he only ever used his own name. She said the process of completing her tax return took about five to ten minutes.

72    Ms Lee recalled signing a piece of paper Mr Wright asked her to sign, but she did not obtain a copy of it. She said that Mr Wright told her that she had to pay him for preparing her tax return, but he did not tell her how much. The Commission showed Ms Lee a Centrepay Deductions Authority form which contained her details. Ms Lee said that Mr Wright filled in the target amount of $225 on that form. While she saw Mr Wright complete that form, she said she did not know the purpose of the form and he did not tell her what it was. She said he just told her to sign it.

Ms Carmen Sunfly

73    Ms Sunfly is 47 years old and lives in Balgo. She can read and write English “a little bit”. She met Mr Wright at Balgo once when he prepared her tax return.

74    The Commission showed Ms Sunfly a Centrepay Deductions Authority form which contained her details. Ms Sunfly said that the only thing she wrote on that form was her signature. She did not write the target amount of $110 on the form.

75    The Commission also showed Ms Sunfly a tax invoice Mr Wright claimed he provided to her. That invoice had her name on it, it was dated 31 August 2013, and it was for an amount of $100. Ms Sunfly said that she had not seen that document before. She said Mr Wright did not give it to her when he prepared her tax return and nor did he send it to her afterwards.

Mr Frankie Wangyella

76    Mr Wangyella is 58 years old and has lived in Balgo for about seven years. While he can speak English well, he “cannot read and write English well”. He used to work at the WAC. Mr Wangyella said he knew who Mr Wright was because he travelled to Balgo once a year for about three years to prepare tax returns for the residents of the community. He said he had tax returns prepared by Mr Wright on three occasions: twice while he was living in Balgo and once when he was living in Mulan in Western Australia.

77    Mr Wangyella said he knew when Mr Wright was visiting the community because he recognised his vehicle and he saw his sign on the notice board outside the WAC offices. He said Mr Wright would set up a temporary office at the back of the WAC offices. When Mr Wright last came to Balgo in 2013, Mr Wangyella said he had him prepare his tax return. He said the whole process took about ten minutes. He said he did not know that Mr Wright worked for a company.

78    Mr Wangyella said he remembered signing a piece of paper that Mr Wright gave to him, but he did not know what its purpose was. He said he did not receive a copy of it. He said Mr Wright did not tell him that he had to pay to have his tax return prepared and he thought he was doing it for free. He said he did not know he paid Mr Wright anything to prepare it.

79    The Commission showed Mr Wangyella a Centrepay Deductions Authority form which contained his details. Mr Wangyella said he remembered signing that form, but he did not write the target amount of $110 on it. He said he did not know the purpose of that form and he said that Mr Wright did not explain it to him.

80    The Commission also showed Mr Wangyella a tax invoice that Mr Wright claimed he provided to him. That invoice had his name on it, it was dated 13 August 2012, and it was for an amount of $100. Mr Wangyella said that he had not seen that document before. He said Mr Wright did not give it to him when he prepared his tax return and nor did he send it to him afterwards.

Mr Gary Njamme

81    Mr Njamme is 49 years old and has lived in Balgo his whole life. He can read and write English. He works at the Balgo school. He said he knew of Mr Wright because he visited Balgo once a year to prepare tax returns for people. He said the last time he saw Mr Wright was in 2013. He said Mr Wright only prepared his tax return on one occasion.

82    Mr Njamme said he knew when Mr Wright was visiting the community because he would see his vehicle and people in the community would tell him that he was there. He said on occasions he would see a notice posted on the notice board outside the WAC offices stating when Mr Wright was to visit the community. He said Mr Wright would set up a temporary office at the back of the WAC offices. When Mr Wright last came to Balgo in 2013, he said he had him prepare his tax return. He said the whole process did not take very long. He said he did not know that Mr Wright worked for a company.

83    Mr Njamme remembered signing a piece of paper for Mr Wright, but he said he did not receive a copy of it. He said Mr Wright told him that it would cost $110 to have his tax return prepared, but he said he could not recall whether Mr Wright told him he would be charged any additional fee for any other services.

84    The Commission showed Mr Njamme a Centrepay Deductions Authority form which contained his details. Mr Njamme said that the only thing he wrote on that form was his signature. He said the remainder of the form was completed in by Mr Wright, including the target amount of $110. He said that Mr Wright told him that the form allowed him to deduct money from his Centrelink payments to pay him for preparing his tax return.

Mr Mark Moora

85    Mr Moora is 69 years old and has lived at Balgo for more than 10 years. While he can speak English, he cannot read or write it. He said he knew who Mr Wright was because he travelled to Balgo and prepared his tax return. He recalled that Mr Wright set up a temporary office near the WAC offices. He said the last time he came to Balgo was in 2013. He said it was on that occasion that Mr Wright prepared his tax return. He said the process of preparing his tax return did not take long. He said Mr Wright did not tell him he worked for a company.

86    The Commission showed Mr Moora a Centrepay Deductions Authority form which contained his details. Mr Moora said that the only thing he wrote on that form was his signature. He said he did not know the purpose of the form and Mr Wright did not tell him. He said he did not fill in the target amount on the form of $150. He said: “I remember he told me to sign and I wouldn’t have to pay tax”. He said Mr Wright did not tell him how much it would cost him to prepare his tax return. Mr Moora said he did not receive a copy of this form.

87    Although Mr Moora did not recall having Mr Wright prepare his tax return in 2012, the Commission also showed him a Centrepay Deductions Authority form relating to that year which contained Mr Moora’s details. Adata was nominated as the service provider on that form. The target amount on the form was $55. Mr Moora did not remember seeing Mr Wright in 2012, but he recalled Mr Wright telling him that he did not need to lodge a tax return because he was “too old and [did not] need to pay tax”.

Mr Nathaniel Stretch

88    Mr Stretch is 28 years old and has lived at Balgo his whole life. He can read and write English. He is the Chairperson of the WAC. He said he knew Mr Wright because he visited the Balgo community to prepare tax returns, although he had not been there since 2013.

89    Mr Stretch said Mr Wright prepared his tax return in about 2006 or 2007, and again in 2012. He said he knew when Mr Wright was visiting the community because he saw his car. He said that Mr Wright would go into the shop on the community and tell the people there that he was at Balgo to prepare tax returns for anyone who needed to have them done. He said Mr Wright would also post a notice at the court house, which is behind the WAC offices. He said that he did not invite Mr Wright to come to Balgo to prepare tax returns. He said he did not know that Mr Wright worked for a company.

90    Mr Stretch said that it took a long time for Mr Wright to prepare his tax return because he had a lot of questions to ask him about his spouse.

91    The Commission showed Mr Stretch a Centrepay Deductions Authority form which contained his details. Mr Stretch said that the only thing he wrote on that form was his signature. Mr Stretch said he did not receive a copy of the form. He said: “He told me to sign it and he said ‘You’ll be right’”. Mr Stretch said he did not fill in the target amount of the form of $110, although he remembered Mr Wright telling him that it would cost him $110 to have his tax return prepared. He said that Mr Wright did not tell him that he owed him money from previous years, or that he had to pay for anything other than preparing his tax returns.

92    The Commission also showed Mr Stretch two tax invoices that Mr Wright claimed he had provided to him. Both invoices had his name on them, and they were both for the amount of $100. The first invoice was dated 14 August 2012 and the second was dated 8 August 2013. Mr Stretch said that he had not seen either document before. He said that Mr Wright did not give them to him when he prepared his tax returns and nor did he send them to him afterwards.

Ms Serena Nowee

93    Ms Nowee is 25 years old and has lived at Balgo her whole life. She can read and write English. She knew Mr Wright because he visited the Balgo Community to help people prepare their tax returns. She said when Mr Wright visited the community, he would post signs at the shop, or at the WAC offices, containing his name and the dates he would be in Balgo.

94    The only occasion Mr Wright prepared Ms Nowee’s tax return was during 2013. Ms Nowee said the whole process of preparing her return took five to ten minutes. She said she did not know that Mr Wright was acting on behalf of a company. She said:

When I met Wayne Wright to do my taxes in 2013, he was at the council office. My name was on list up on the Council noticeboard with Wayne Wright’s name on it. People told me my name was on the list.

I saw Wayne Wright to do my taxes because I started working at the school. I started working at the school in February 2013. I worked at the school for 2 years.

95    The Commission showed Ms Nowee a Centrepay Deductions Authority form which contained her details. She remembered Mr Wright telling her the amounts to insert on the form. She also remembered signing it. The target amount on the form was $180. Ms Nowee remembered Mr Wright telling her that he was going to deduct money from her Centrelink payments, but she did not remember him telling her how much would be deducted. She said Mr Wright did not tell her that she had to pay him for anything other than the tax return service. She did not obtain a copy of the form.

96    The Commission also showed Ms Nowee two tax invoices that Mr Wright claimed he had provided to her. Both invoices had her name on them and they were both for the amount of $100. The first invoice was dated 16 August 2012 and the second was dated 8 August 2013. Ms Nowee said that she had not seen either document before. She said that Mr Wright did not give them to her when he prepared her tax return and nor did he send them to her afterwards. She also said that she did not think Mr Wright prepared her tax return in 2012, as she was not working then.

The 43 clients for whom Mr Wright claimed no taxation returns were lodged in 2012 or 2013

97    Mr Wright raised this issue as one of his key issues (see [18(b)] above). The 43 clients concerned are identified in the final column of Table B above. Notwithstanding the fact they received no services, fees were still deducted for these clients through the Centrepay Scheme. Mr Wright explained that this was done because those clients had outstanding accounts receivable. He said:

The list of 43; there was no service provided or lodgement provided at that time. It’s all strictly accounts receivable. They’re all debts, and I think the whole purpose of the whole 12 months - that’s what I’ve been saying. There’s a big difference between an invoice and accounts receivable. That was the purpose of that list, your Honour. Those people paid because they had a previous bill, and I think that’s clear now, I hope, but there’s a difference.

98    He also said that the changes that were made to the income taxation marginal rates explained why some of his existing clients may not have been required to lodge a taxation return in a particular year. He said:

One of the reasons it stopped - there’s no requirement from a lot of people to do a tax return, because the threshold was changed from 6000 to 18,000, and I think it’s intentional by the Federal Government, and that’s fine with me, and also the adopted counting legal requirement to deductable poll tax by the head offices that are running the payroll. Previously they would allow it so that the people would get a refund, and it was always welcome, and that’s what I’ve had to contend with, is the interviewing, and these 43 - I go through that. I interview. You no longer need to do it, so - - -

99    Notably, of the 43 clients for whom no tax return was lodged in 2012 or 2013, two clients were new clients who had not previously been supplied services by Mr Wright: see clients 50 and 127 shaded on Table B above. Accordingly, those clients could not have been liable to pay any outstanding accounts receivable. Mr Wright’s explanation for this apparent discrepancy was that he gave advice to those two clients and they were charged for that advice.

The Commission’s s 155 investigation and examination

100    The third key issue raised by Mr Wright (see [18(c)] above) was the manner in which the Commission conducted its investigation and examination of him under s 155 of the CCA. Since Mr Wright has raised this as a key issue, I will briefly describe the background to the issue and what it entails.

101    Ms Sharyn Vaughan is the Assistant Regional Director of the Commission in the Northern Territory. In that capacity, she was responsible for the conduct of the s 155 investigation into Mr Wright’s activities. Ms Vaughan provided affidavit evidence about the details of that investigation. The investigation commenced in March 2014 when Ms Vaughan sent correspondence to Mr Wright enclosing two notices, one issued under s 155(1)(a) and (b) of the CCA and directed to Adata, and the other issued under s 155(1)(c) of the CCA and directed to Mr Wright personally. Over the ensuing week, Ms Vaughan received a number of emails from Mr Wright which attached various documents.

102    In April 2014, the Commission conducted and recorded an examination of Mr Wright under s 155. A transcript of that recording was subsequently prepared. The Commission contended that Mr Wright made a large number of admissions during that examination. It is unnecessary for present purposes to record what those admissions were. After the examination was concluded, a copy of the transcript and all the exhibits were sent to Mr Wright. From September 2014, Mr Wright began to query the accuracy of the transcript. He requested a copy of the audio recording and made a number of requests for the transcript to be amended. His primary concern was that he believed he said during the examination that his standard fee to lodge a tax return was $100. However, the transcript consistently recorded that he had said it was $110. As a consequence of Mr Wright’s complaints, the transcript provider, Auscript Australasia Pty Limited, reviewed the audio recording and confirmed that the transcript was accurate. Accordingly, Auscript declined to amend the transcript.

Mr Wright’s other clients and his future intentions

103    Although this proceeding only relates to the 191 consumers identified by the Commission, Mr Wright claimed in evidence that he provided tax return services to many more clients in the years 2012 and 2013. For example, in 2012, Mr Wright claimed that he dealt with “between 500 and 1000” people regarding their tax affairs. In 2013, he claimed he dealt with approximately the same number. Understandably, he could not recall precisely how many of those clients required him to lodge income tax returns, but he estimated it would have been “less than 1000”.