51 The collection of debts may involve coercion in the sense that the debtor is subjected to the pressure of the demand and the legitimate threat of civil process for recovery with the additional cost and damage to credit which that can involve. Such pressure may be thought of as coercion but is entirely legitimate and not "undue". Where the demand includes content which does not serve legitimate purposes of reminding the debtor of the obligation and threatening legal proceedings for recovery but is calculated otherwise to intimidate or threaten the debtor, then the coercion may be undue. So if a threat is made of criminal proceedings, or of the immediate seizure and sale of house and property, a remedy not available in the absence of retention of title or some form of security, the coercion is likely to be seen as undue. The threat of criminal proceedings itself may be an offence against State laws. Quite apart from content the manner or circumstances of a demand or communication, including the language used, the time and place at which it is made and the person to whom it is communicated, may go beyond the legitimate purposes of drawing attention to the existence of the obligation and the consequences for non-compliance. Again such a communication may amount to undue coercion. Obvious examples include the use of personally abusive or obscene language, conveying the demand to uninvolved family members, particularly children, or conveying the demand through a third party in order to embarrass the debtor when the debtor could reasonably have been the subject of a direct communication. Each case will turn on its own facts. Some useful examples of situations that may give rise to contraventions of s 60 are set out in the ACCC guidelines entitled "Debt Collection and the Trade Practices Act" published in July 1999. As pointed out of course that publication is not a statement of the law. It can only be a guide. The recovery of unpaid debts can be pursued with firmness, determination and civility. It can do all those things without resorting to bullying, bluff, misrepresentation or stand-over tactics. If it does the first and avoids the second it is unlikely to contravene the law.
34 His Honour did not specifically address the question of what is meant by "in connection with" in s 60 of the Act. At [48] (p 27), his Honour did speak of pressure being applied to a consumer. The examples which his Honour gave were examples of pressure being applied to a consumer in that person's capacity as a consumer. But his Honour was not called upon to decide whether the expression "in connection with" should be construed widely, as is often the case, or narrowly by reference to the purpose for which s 60 was enacted.
35 As the respondent submitted, correctly I think, there are only a handful of decisions in this Court which deal with s 60 of the Act. Most do not descend into any reasoned analysis of the section because the section appeared clearly to apply. There is no Full Court authority and no High Court authority on the meaning of the section.
36 I should follow Dowsett J in Worchild [2005] FCA 1792 unless I am satisfied that his Honour was clearly wrong. I am not so satisfied.
37 I will therefore approach the interpretation of s 60 upon the basis that the expression "in connection with" requires a direct connection between the conduct complained of and the actual or possible supply of goods or services to a consumer. I consider, however, that construing the expression in this way does not necessarily mean that, as a matter of law, in every case, the harassment of which complaint is made must be harassment of a consumer in that person's capacity as a consumer and can never be constituted by the harassment of another person (who may or may not also be a consumer) directed or aimed at a consumer under actual or possible arrangements of supply.
38 The respondent submitted that the harassment of a supplier can never be conduct which is caught by s 60 of the Act. I am not convinced that this submission is correct. I do not think I have to go as far as the respondent submits in order to decide the present application.
39 In the present case, the applicant alleges that Mr Hadley unduly harassed the applicant herself, unduly harassed and coerced GPT and unduly harassed and coerced the applicant's customers.
40 Coercion involves proximate compulsion, physical pressure or force. No facts or matters are pleaded in the present case which could conceivably be characterised as the use of coercion by Mr Hadley. Nothing has been put to me to suggest that such a complexion could be put upon Mr Hadley's conduct.
41 Rather, the focus of the argument was on the concept of "undue harassment". Harassment also involves conduct directed at the person harassed in an immediate and direct fashion. It usually involves repetition. The assessment of whether conduct is properly characterised as harassment involves an evaluative judgment (per French J in McCaskey 104 FCR 8 at [48] (p 27)). The word "undue" adds an extra layer of evaluation (per French J in McCaskey 104 FCR 8 at [48] (p 27)). To be "undue", the harassment must be disproportionate and patently unreasonable. These views as to the meaning of the core expressions in s 60 of the Act were supported by Hill J in Australian Competition and Consumer Commission v Maritime Union of Australia 114 FCR 472 at [60]-[62] (pp 485-486).
42 The respondent submitted that Mr Hadley's conduct could not conceivably constitute harassment or undue harassment of GPT, the applicant or the customers of the Seafood Lovers business. It was submitted that the quality of his conduct just does not fit the meaning of the expression "undue harassment" as used in s 60 of the Act.
43 The respondent also submitted that the necessary connection between Mr Hadley's conduct and the supply or possible supply of goods or services to one or more consumers or the payment for such goods or services by one or more consumers was not pleaded and could not be pleaded. This second point depends to a large extent upon my accepting Dowsett J's relatively narrow interpretation of the expression "in connection with" in s 60.
44 The respondent submitted that the applicant's case based upon s 60 of the Act was hopeless and was also colourable. Were I to conclude that the case was colourable, the proceedings should be dismissed with costs.
45 The essence of Mr Hadley's on air remarks was the repeated denigration of the applicant and her husband and the repeated exhortation of their customers to boycott the Seafood Lovers business. In the pleading, the applicant also alleges that, in his on air remarks, Mr Hadley harassed and coerced GPT to terminate the lease.
46 Mr Hadley's broadcasts were made to those members of the public at large who were able to receive a signal from Radio 2GB. Those broadcasts could be heard by any member of the public who could receive 2GB's broadcasts and who might care to turn on his or her radio and listen to Mr Hadley. That class of persons might well have included the applicant, officers or employees of GPT and customers and potential customers of the Seafood Lovers business. It might also have included other persons who, in some way, might have interacted with the applicant, her customers or GPT personnel in a way which could be appropriately described as harassment of one or more of them. This harassment by intermediaries could conceivably be attributable to Mr Hadley although such a case would be extremely difficult to plead and make good.
47 In the present case, the applicant has not pleaded any facts or matters that would enable the Court to assess whether Mr Hadley's conduct was capable of constituting undue harassment in any of the three ways in which the s 60 case was, in general terms, put on behalf of the applicant in the submissions made by her Counsel. More importantly, the applicant has not pleaded facts and matters that are capable of establishing the necessary connection between Mr Hadley's conduct and any of:
(a) The termination of the lease by GPT;
(b) Some conduct (as yet unspecified) engaged in by the applicant which caused the loss for which she seeks damages; or
(c) The boycotting of the Seafood Lovers business by customers or potential customers of that business.
Nor has the applicant pleaded facts and matters which link the impugned conduct in a direct way to the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer.
48 At the very least, insofar as the case based upon the undue harassment of GPT is concerned, the applicant would need to plead that officers or employees of GPT heard the relevant broadcasts; that those personnel were repeatedly bombarded by Mr Hadley in a way that amounted to undue harassment; that, in response to Mr Hadley's campaign, GPT terminated the lease in circumstances where it was not lawfully entitled to do so; and, as a result of the termination of the lease, the Seafood Lovers business was destroyed. No attempt has been made to plead any such facts and matters. The pleading does not make clear which of Mr Hadley's remarks were communicated to GPT, how or when they were communicated to GPT, how those remarks led to GPT terminating the lease or how the termination of the lease resulted in the loss claimed. The pleading does not make clear what connection (if any) between Mr Hadley's remarks and the supply of services under the lease is said to exist and thus does not enable the Court or the respondent to come to a view as to whether that connection is sufficiently close as to constitute an appropriate link for the purposes of s 60 of the Act.
49 Furthermore, it is obvious that GPT is not relevantly a consumer of any goods or services in the circumstances of the present case. Rather, it is a supplier of services under the lease. The respondent argued that the harassment or coercion of a supplier of goods or services or directed at a supplier of goods or services cannot be conduct proscribed by s 60 of the Act. I do not need to come to a final view on this point because the pleading is, in any event, deficient.
50 Insofar as the case based upon harassment of the applicant herself is concerned, the only supply relied upon by the applicant as being the relevant supply connected to Mr Hadley's broadcasts is the supply of services by GPT under the lease. Even if the applicant were able to plead facts and matters that would arguably show that she was directly harassed by Mr Hadley's on air remarks, she would need to confront the problem that the alleged harassment of her was not engaged in by Mr Hadley in connection with the supply of services by GPT under the lease. He was not putting pressure on her in relation to that supply. As with the case based upon the alleged harassment of GPT, no facts or matters are pleaded which articulate an appropriate connection between Mr Hadley's remarks and the relevant supply. Furthermore, the pleading does not articulate how the harassment of the applicant herself led to the destruction of the Seafood Lovers business.
51 The potential (but, as yet, not pleaded) case based upon the undue harassment of customers and potential customers of the Seafood Lovers business suffers from similar defects. It is not sufficient for the applicant simply to refer to the broadcasts (including Mr Hadley's urgings that the Seafood Lovers business be boycotted) and to rely upon the mere fact that each of the broadcasts took place. The applicant would have to allege that particular persons listened to the broadcasts, were unduly badgered and tormented by them and, as a result, boycotted the business, thus causing financial loss to the applicant. Not only does the applicant not plead such a case but, in my view, having regard both to the particulars of the s 60 case currently relied upon by the applicant in the Statement of Claim and to the undisputed facts of the matter, it would be impossible for the applicant to produce a satisfactory s 60 pleading based upon the harassment of existing and/or potential customers. It seems clear that Mr Hadley urged, cajoled and exhorted the customers and potential customers of the Seafood Lovers business to boycott the business. He did not harass them, let alone unduly harass them. In the pleading, the applicant currently characterises his conduct as an "invitation" to the customers to boycott the Seafood Lovers business.
52 The respondent submitted that the Court should be slow to curtail freedom of speech by allowing s 60 of the Act to be used to gag public discussion of matters of public concern. The concept of undue harassment could, in an appropriate case, cover verbal abuse or conduct falling well short of physical interaction. Indeed, the language of the section itself contemplates that the prohibition contained in the section encompasses more than the application of physical force.
53 However, remarks made during a radio broadcast accessible by a large part of the public would generally not generate a sufficiently direct connection between those remarks and the supply or possible supply of goods or services to a consumer as to constitute harassment or coercion in connection with such supply. Much more would usually be required.
54 There is nothing more relied upon in the current pleading. The supply focussed on by the applicant in her pleading is the supply of services under the lease. Even if that supply is properly characterised as a supply of services to a consumer, as the pleading currently stands, the remarks made in the 17 radio broadcasts relied upon do not have a sufficiently direct connection to that supply to constitute harassment or coercion in connection with that supply within the meaning of s 60.
55 The applicant's pleaded case based upon s 60 of the Act is bound to fail and should be struck out. The potential s 60 case based upon the alleged harassment of customers is hopeless. I would not give leave to the applicant to re-plead her s 60 case so as to include a case based upon that subject matter. My present view is that the applicant would almost certainly be unable to plead a s 60 case based upon the undue harassment or coercion of the applicant herself or of GPT were I to grant leave to her to re-plead such a case. She did not seek leave to re-plead such a case and appeared to be content for the Court to proceed upon the basis that she had put her best foot forward in pars 5 and 6 of the Statement of Claim read with the particulars extracted at [19] above. In the circumstances, I propose not to give to the applicant leave to re-plead her s 60 case. This conclusion does not prevent the applicant from seeking to plead such a case in the future by seeking leave to amend her Statement of Claim were she minded and able to do so.
56 For these reasons, I propose to strike out pars 5 and 6 of the Statement of Claim and the following words in the heading to the Particulars on p 3 of the Statement of Claim, namely, "Breaches of Section 60 TPA". My intention in striking out that matter is to strike out the s 60 claims in their entirety.