Australian Communications and Media Authority v V Marketing Australia Pty Ltd

LOGAN J: 1 As long ago as 5 April 2019, the Australian Communications and Media Authority (ACMA) instituted proceedings against four respondents in respect of alleged contraventions of s 11 of the Do Not Call Register Act 2006 (Cth) (DNCR Act). The four respondents, respectively, are V Marketing Australia Pty Ltd (V Marketing), which has since passed into liquidation since the commencement of the preceding, Balaska Pty Ltd (Balaska), Mr Michael Vazquez, third respondent, and Mr James Matthew McLennan. It will be necessary in the course of dealing with an application by Balaska further to amend its defence to descend into some detail as to the course of the proceedings since their institution. Balaska's application is that it be granted, under r 16.53 of the Federal Court Rules 2011 (Cth), leave further to amend its defence. That application necessarily entails, in my view and as the ACMA submitted, leave to withdraw an admission. So much was accepted by Balaska, as a necessary consequence of a defence which it sought to resurrect by amendment. To explain this, it is necessary to set out some excerpts from the ACMA's amended statement of claim (ASOC). 2 Paragraph 18 of the ASOC alleges, by engaging in the conduct pleaded in para 15 above and in the circumstances pleaded in paras 16 and 17 above, Balaska has contravened s 11(1) of the DNCR Act. Paragraphs 15, 16 and 17 of the ASOC are in these terms: Conduct of Balaska Telemarketing calls 15. On a date or dates unknown between 1 January 2017 and 9 November 2017 or about 2 April 2013, Balaska entered into a contract, arrangement, or understanding with V Marketing for V Marketing to carry on telemarketing activities, including by making telemarketing calls, on behalf of Balaska. Particulars a) The applicant repeats the particulars to paragraph 6 above. 16. V Marketing gave effect to the contract, arrangement or understanding pleaded in paragraph 15 above by engaging in the conduct pleaded in paragraph 7 above. 17. By operation of s 11(9) of the DNCR Act, Balaska caused the telemarking calls pleaded in paragraph 7 above to be made by V Marketing. 3 Paragraph 9 of Balaska's current amended defence, responsive to the ASOC, is in these terms: 9 The second respondent admits paragraph 18. 4 In terms of Balaska's pleaded case, it was not always so that it admitted a contravention. As originally pleaded, paras 10 and 11 of Balaska's defence were in these terms: 10. The Second Respondent took the following precautions to avoid the alleged contraventions: a. it engaged a reputable provider of sales and marketing services to perform the Sales Work; b. it engaged a sales and marketing services business: i. which held itself out to the public as having extensive expertise in, inter alia, the making of telemarketing calls; ii. domiciled in Australia; iii. which undertook its telemarketing activities wholly within Australia; and iv. which could reasonably have been expected to be aware of, and to provide its services in compliance with, the DNCR Act and the Telco Act and any other relevant legislation or regulation; c. enquiring of the First Respondent as to its existing and prior clientele and being informed by the Third Respondent in response (on behalf of the First Respondent) that the First Respondent had provided telemarketing services to major Australian businesses such as Green Initiatives; d. visiting the First Respondent's business premises in person, and satisfying itself that the First Respondent appeared to be a successful and professional sales and marketing business, prior to entering into the V Marketing Agreement; and e. meeting the key persons involved in the day to day operation of the First Respondent's sales and marketing business, prior to entering into the V Marketing Agreement. 11. The Second Respondent exercised due diligence to avoid the alleged contraventions by: a. on five separate occasions on or about 28 February 2017, 31 May 2017, 21 September 2017, 16 October 2017 and 16 November 2017: i. promptly bringing to the First Respondent's attention that the Second Respondent had received compliance warnings from the ACMA; ii. providing the First Respondent with copies of the compliance notices; iii. requesting that the First Respondent investigate whether the telemarketing calls the subject of the compliance warnings had in fact been made to registered numbers; and iv. requesting that, in the event that the First Respondent had in fact made the calls the subject of the compliance warnings, that it promptly remediate any issue or error which had resulted in the said calls having been made; b. in response to the first compliance warning on or about 28 February 2017, receiving from the First Respondent: i. an express assurance that a washing procedure was in place to ensure compliance with the DNCR Act; and ii. alleged evidence of the 'washing' of the relevant call list which included the telephone number the subject of the first compliance warning notice. 5 To make sense of the intent of paras 10 and 11, as originally pleaded in Balaska's defence, it is necessary to set out s 11 of the DNCR Act which provides: 11 Unsolicited telemarketing calls must not be made to a number registered on the Do Not Call Register (1) A person must not make, or cause to be made, a telemarketing call to an Australian number if: (a) the number is registered on the Do Not Call Register; and (b) the call is not a designated telemarketing call. Note: For designated telemarketing call, see Schedule 1. (2) Subsection (1) does not apply if: (a) the relevant account-holder; or (b) a nominee of the relevant account-holder; consented to the making of the call. Note 1: For the meaning of consent, see Schedule 2. Note 2: For the meaning of nominee, see section 39. (3) Subsection (1) does not apply if: (a) the number was included on a list that was submitted by the person under subsection 19(1); and (b) during the 30-day period ending at the end of the day on which the call was made: (i) the person received information under paragraph 19(2)(d) in response to the submission of the list, but that information did not state that the number was registered on the Do Not Call Register; or (ii) the person was informed under paragraph 19(2)(e), in response to the submission of the list, that the number was not registered on the Do Not Call Register; or (iii) under paragraph 19(2)(f), in response to the submission of the list, the person was given a list that included the number. For the purposes of this subsection, a list may consist of a single Australian number. Note: Section 19 deals with access to the Do Not Call Register. (4) Subsection (1) does not apply if the person made the call, or caused the call to be made, by mistake. (5) Subsection (1) does not apply if the person took reasonable precautions, and exercised due diligence, to avoid the contravention. (6) A person who wishes to rely on subsection (2), (3), (4) or (5) bears an evidential burden in relation to that matter. Ancillary contraventions (7) A person must not: (a) aid, abet, counsel or procure a contravention of subsection (1); or (b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or (c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or (d) conspire with others to effect a contravention of subsection (1). Civil penalty provisions (8) Subsections (1) and (7) are civil penalty provisions. Note: Part 4 provides for pecuniary penalties for breaches of civil penalty provisions. Extended meaning of cause (9) For the purposes of this section, if: (a) a person (the first person) enters into a contract or arrangement, or arrives at an understanding, with another person; and (c) the other person, or an employee or agent of the other person, gives effect to the contract, arrangement or understanding by making a telemarketing call; the first person is taken to have caused the telemarketing call to be made. (10) Paragraph (9)(a) applies to contracts or arrangements entered into, or understandings arrived at, before, at or after the commencement of this section. [emphasis in original] 6 Obviously enough, as originally pleaded, paras 10 and 11 of Balaska's defence sought to raise a defence under s 11(5) of the DNCR Act. Balaska and Mr McLennan were originally inspired, the ACMA having filed its affidavit evidence-in-chief and on the strength of the pleadings as they then stood (which included Balaska's defence in its original form), to apply for summary judgment. That application was unsuccessful: see Australian Communications and Media Authority v V Marketing Pty Ltd (in liq) [2020] FCA 1326 (Collier J). For reasons set out in that judgment, her Honour's conclusion was that, although the ACMA's case on the then evidence as against those respondents was not a strong one, it was nonetheless not a case for summary judgment. 7 Thereafter, the ACMA was given leave to amend its statement of claim and to file further evidence. It did this. The amended defence, to which I have referred, was a consequence of the ACMA's amendment of its statement of claim and made as against the then state of the ACMA's evidence. 8 The ASOC was filed in March 2021. Balaska's amended defence was filed in October 2021. Apart from and consistent with the admission of the contravention to which I have referred, Balaska also withdrew its reliance upon s 11(5) DNCR Act defence. Thus, paras 10 and 11, as originally pleaded, were struck out in the amended defence. The course taken by Balaska in its amended defence was not without consequence in terms of the management of the proceedings both by Collier J and, in succession, by Thomas J. 9 On 20 October 2021, Collier J ordered that there be a one day liability trial in respect of Mr McLennan on 30 March 2022. That order appears to have been made against the background that, in respect of each of the other respondents, there was no controversy as to liability. The only question in respect of those respondents was in respect of penalty. That position is confirmed by regard to statements made to Thomas J, who had by then succeeded to Collier J as docket judge, on 30 March 2022, upon the commencement of the trial with respect to the liability, if any, of Mr McLennan as a person said to be knowingly concerned and in Balaska's admitted contraventions. After a staged phasing of the liability proceedings, Thomas J decided on 29 January 2024 that the ACMA had not proved its case in respect of accessorial liability on the part of Mr McLennan: see Australian Communications and Media Authority v V Marketing Australia Pty Ltd (in liq) (No 2) [2024] FCA 34. 10 In the candid submissions made on behalf of Balaska, it was revealed that the inspiration for the application further to amend the defence was found in the reasons delivered by Thomas J. As to this, it is necessary to set out the somewhat lengthy excerpt of those reasons, both to reveal the inspiration as well as, having regard to the ACMA submissions, the context in which particular statements were made by his Honour. Thus, his Honour stated, at [93] - [107], the following: 93 I conclude that, given the contents of the compliance warnings, the timing of the compliance warnings and the responses received from Mr McEvoy, Mr McLennan did not have actual knowledge of the elements of the contraventions. 94 This position was quite different from the facts which were considered in FHT Travel and Mobilegate. They are also different from the example given by way of illustration by the ACMA. In that example, the person against whom accessorial liability was being pressed had directed the contravenor to conduct a marketing campaign and call numbers on the Do Not Call Register. In those circumstances, knowledge of the scheme (which involved actual knowledge of the steps being taken which involved the contraventions) would be adequate to establish the person being knowingly concerned and playing an active role. No such conduct of this type is asserted or established in this case. 95 The ACMA submitted that Mr McLennan had some practical involvement in the acts or omissions that were constituted by Balaska's contraventions. This arose, in the ACMA's submission, because Mr McLennan was alleged to have failed to take any material step to ensure compliance and prevent future non-compliance in circumstances where he had authority and responsibility to do so. 96 In view of the conclusion I have reached regarding the knowledge of Mr McLennan, it is not necessary to deal with that aspect. 97 However, I will make some observations. 98 Reasonable steps which might have been taken by someone in Mr McLennan's position are determined by reference to the extent of the knowledge. By the end of the period of seven months, from Mr McLennan's perspective, having received the compliance warnings, he was aware of seven telemarketing calls to three telephone numbers. On each occasion (except the second occasion, which Mr McLennan concedes was by virtue of an oversight) Mr McLennan forwarded the warning to V Marketing. The responses from V Marketing provided relevant information as to washing for the post codes and were relevant to the issue of knowledge. 99 Given the contents of the compliance warnings, the timing of the compliance warnings and the responses received from Mr McLennan, the action he took was reasonable and proportionate. There was no failure to take reasonable action. 100 The ACMA referred to the terms of the draft agreement. 101 There is no dispute that the draft agreement was never signed. The date upon which the draft agreement was provided to Mr McLennan by V Marketing post-dated the relevant period. At its highest, the ACMA referred to evidence to the effect that the agreement "does give a good outline of how the process works between V Marketing and Balaska". The ACMA referred to cl 3.6(a)(ii) of the draft agreement that "the referrer must comply with all guidelines and directions issued by the recipient for the … method of marketing promotion, advertising and communication". 102 Whilst the ACMA called evidence from witnesses from V Marketing, there was no evidence from them about the draft agreement or that Mr McLennan exercised any control over the operation of V Marketing's telemarketing business, or that they considered it was his role to do so, or that they considered him able to direct them as to how V Marketing ran its telemarketing business. Mr McLennan's evidence was that he did not have control and this was consistent with the evidence from those witnesses called by the ACMA. 103 In my view, there was insufficient evidence to enable a finding that the terms of the arrangement between the parties followed the draft agreement so that cl 3.6(a)(ii) was part of those terms. 104 The ACMA has also asserted that the emails sent by Mr McLennan following receipt of the compliance warnings demonstrated that he had the capacity to direct V Marketing in respect of its work on behalf of Balaska and to require proof of V Marketing's compliance with the DNCR Act. As is clear, the compliance warnings related to actions of V Marketing employees. In those circumstances, it would not be unusual for a person in Mr McLennan's position to forward those compliance warnings to the person with the ability to respond and make corrections, if necessary. The communications were not framed in terms of a contractual requirement, nor did they require any contractual response. In my view, they are not evidence of a capacity of Balaska or Mr McLennan to direct V Marketing. 105 The ACMA also referred to evidence that Mr McLennan would "come into V Marketing's office occasionally for a Monday morning meeting with field sales representatives to run through the current focus of the campaigns" and that he "would educate the field sales representatives on how to do their job better" and that he provided two vehicles for use by V Marketing sales representatives. This was suggested to be indicative that Mr McLennan had power and capacity to require V Marketing to take steps such as reviewing and improving its call washing procedures, or directing V Marketing staff to use the call washing procedures correctly and the staff demonstrating to Balaska that the procedure was effective so as to ensure V Marketing did not contravene the DNCR Act. 106 Each of the matters raised by the ACMA dealt with Mr McLennan's interaction with field sales representatives who, from their description, would have face-to-face meetings with prospective customers and so would need to be conversant with the services provided by Balaska. The description provided by the ACMA clearly fell within those activities. It did not suggest in any way that Mr McLennan or Balaska may have had the power or capacity to require V Marketing to take steps with respect to its call washing procedures. 107 As I said earlier, because of the conclusions I have reached as to Mr McLennan's lack of actual knowledge of the essential facts which constitute a contravention and consequently that he was not "knowingly concerned" in a contravention, it is not necessary for me to reach conclusions about the ability of Mr McLennan or Balaska to direct V Marketing. However, as to that issue, I would conclude that the evidence was not sufficient to establish that a clause such as 3.6(a)(ii) was a term of the arrangements between V Marketing and Balaska and that none of the evidence referred to by the ACMA supported the conclusion that Mr McLennan had power to direct V Marketing. 11 Balaska highlighted, as occasion for the amendment application, statements made by his Honour, at [95] - [99]. These statements were not just obiter. They were also given in the context of dealing with what, if any, consequence there was in a draft agreement, never signed, as to which V Marketing and Balaska were contemplated parties. The particular paragraphs in the proposed further amended defence - of relevance are proposed paras 10A and 11A, which provide: 10A. The Second Respondent took the following precautions to avoid the alleged contraventions: a. It engaged a reputable provider of sales and marketing services to perform the Sales Work; b. It engaged a sales and marketing services business: i. which held itself out to the public as having extensive expertise in, inter alia, the making of telemarketing calls; ii. domiciled in Australia; iii. which undertook its telemarketing activities wholly within Australia; and iv. which could reasonably have been expected to be aware of. and to provide its services in compliance with. the DNCR Act and the Telco Act and any other relevant legislation or regulation; c. It enquired of the First Respondent as to its existing and prior clientele and being informed by the Third Respondent in response (on behalf of the First Respondent) that the First Respondent had provided telemarketing services to major Australian businesses such as Green Initiatives; d. It visited the First Respondent's business premises in person and satisfying itself that the First Respondent appeared to be a successful and professional sales and marketing business. prior to entering into the V Marketing Agreement; and e. It met the key persons involved in the day to day operation of the First Respondent's sales and marketing business. prior to entering into the V Marketing Agreement. 11A. The Second Respondent exercised due diligence to avoid the alleged contraventions by: a. on five separate occasions on or about 28 February 2017. 31 May 2017, 21 September 2017. 16 October 2017 and 16 November 2017: iii. promptly bringing to the First Respondent's attention that the Second Respondent had received compliance warnings from the ACMA; iv. providing the First Respondent with copies of the compliance notices; v. requesting that the First Respondent investigate whether the telemarketing calls the subject of the compliance warnings had in fact been made to registered numbers; and vi. requesting that. in the event that the First Respondent had in fact made the calls the subject of the compliance warnings. that it promptly remediate any issue or error which had resulted in the said calls having been made: b. in response to the first compliance warning on or about 28 February 2017. receiving from the First Respondent: i. an express assurance that a washing procedure was in place to ensure compliance with the DNCR Act; and ii. alleged evidence of the 'washing' of the relevant call list which included the telephone number the subject of the first compliance warning notice, 12 It is also accepted, quite properly, on behalf of Balaska that a consequential amendment would also be necessary to the existing admission of para 18 of the ASOC, in para 9 of the further amended defence. When one looks beyond the paragraphs highlighted on behalf of Balaska in Thomas J's judgment, there is no particular revelation as to why Balaska should be given leave, not just to resurrect its earlier defences, but also to withdraw an admission of a contravention. 13 That admission was an admission both of the factual foundation for contraventions, as well as that those contraventions were sound in law, as pleaded. Throughout the proceeding, Balaska has had the benefit of legal representation. Notably, the amended defence was settled by counsel. The Court has a discretion to exercise, in respect of the granting of leave to amend a pleading, including whether in so doing, to permit the withdrawal of an admission. In the post-Judicature Act system of pleadings, it became settled by the late 19th century, that a party was normally entitled to correct, by amendment, a bona fide error in his pleading, where the other party was not unfairly disadvantaged if the error were corrected. That principle was regarded, even then, as plain, but it did require occasion for the making of an order granting such leave. That could be found, for example, where there had been an incorrect admission of fact made by mistake: see Hollis v Burton [1892] 3 Ch 226. In that case, a more thorough investigation by a party, after making an admission, revealed that there was, in fact, no occasion for the making of such an admission. 14 A century later, there was no different understanding in the Courts of England and Wales, as to the position in relation to the correction by amendments of error in a pleading, including where that entailed a withdrawal of an admission: see Bookbinder v Tebbit [1989] 1 WLR 640, at 643. 15 A similar position prevails in Australia, in circumstances where leave to amend entails leave under r 16.53, as well as r 26.11(2). The authorities concerned were collected by Stewart J in Selvaratnam v St George - A Division of Westpac Banking Corporation (No 2) [2021] FCA 486, at [27] and [28]: 27 The applicable principles with regard to whether leave to withdraw an admission or other pleading that benefits another party are, relevantly, the following, noting that for simplicity I will refer only to the withdrawal of an admission: (1) The court has a broad discretion to weigh up all matters with the overall question being to ensure that there is a fair trial: Jeans v Commonwealth Bank of Australia Ltd [2003] FCAFC 309; 204 ALR 327 at [18] and [23] per Hill, Madgwick and Conti JJ. (2) The court will require an explanation for the making of the admission which is now sought to be withdrawn; the explanation must be a sensible one based on evidence of a solid and substantial character: Celestino v Celestino [1990] FCA 449 at 8 [12] per Spender, Miles and von Doussa JJ (noting that the AustLII MNC for this case is [1990] FCA 299). (3) The object of the courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases; if the mistake is not fraudulent or intended to overreach, can be corrected without injustice to the other party, and if not corrected will not lead to a decision on the real matters in controversy, it should generally be corrected: Celestino at 7 [10]. (4) The overriding consideration is the interests of justice: Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2007] FCA 1390 at [4] per Finn J. (5) The court will not lightly permit a party to withdraw an admission where the other party has acted to its detriment on the admission or is otherwise prejudiced by the withdrawal; if the other party has in good faith relied on the admission to its detriment so as to give rise to an estoppel the court will not permit the admission to be withdrawn: Celestino at 10 [14]. 28 There are also other relevant factors to be considered that are applicable more generally to the amendment of pleadings. In Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (No 2) [2020] FCA 863 at [6], with reference to Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [5], [30], [71], [90], [93], [94], [98] and [102], I identified those factors to include the following: (1) prejudice to another party that cannot be adequately compensated by an award of costs, which would include the inevitable prejudice of unnecessary delay where that exists; (2) inefficiencies in the use of the court as a publicly funded resource arising from the vacation or adjournment of trials; (3) the need to maintain public confidence in the judicial system, which has a potential to be lost where a court is seen to accede to applications made without adequate explanation or justification; (4) the objective of doing justice between the parties; (5) the objective that the pleadings identify the "real" issues between the parties; (6) the overriding purpose of the civil practice and procedure provisions in s 37M of the Federal Court of Australia Act 1976 (Cth), namely to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible; and (7) the nature and the importance of the amendment to the party that is seeking it. 16 As can be seen from his Honour's helpful collection of authority, a consideration present in modern times, in this Court, which was not present in late 19th century English practice, arises from s 37M of the Federal Court of Australia Act 1976 (Cth). Even so, that does not detract from a need for some explanation in respect of why it is that an admission, deliberately made with the benefit of legal representation, should be the subject of leave to withdraw the same. 17 Balaska is perfectly entitled to maintain its client legal privilege, and one should be cautious about endeavours by inference, to subvert a claim in respect of privilege. That said, there is just no explanation as to a mistake, for example, revealed by the further investigation and related proposed further evidence, which would serve to explain why it is that an admission so made should be allowed to be withdrawn. 18 I do not find the explanation in the particular paragraphs of Thomas J's judgment relied upon by Balaska. These were, as the ACMA was submitted, directed to different ends, and given in the context of determining not Balaska's liability, but rather that of Mr McLennan. 19 Balaska was and is a company controlled by Mr McLennan. It was always a very fine forensic value judgement, in those circumstances, to excise the question of Mr McLennan's liability from that of Balaska. But it was not an excising which was impossible in law. Mr McLennan's liability only arose, as Thomas J's judgment nicely reveals, in the event that he was proved to have been knowingly concerned in Balaska's contravention. So there is no necessary antipathy between the admission of Balaska's liability and the contest in respect of Mr McLennan's. 20 That there was such a fine judgement call made, did have forensic consequences. I have already adverted to one of these. That is that the proceeding took a very deliberate shape, in effect hiving off (as against the first, second and third respondents), penalty adjudication, pending determination of a discrete liability question in relation to Mr McLennan as fourth respondent. In turn, that dictated, as far back as 2021, the allocation of Court time for the resolution of these proceedings. In prospect, there was a short hearing in respect of penalty, certainly in relation to three respondents and, perhaps, four. This year, upon my assumption of docket responsibility as a sequel to the retirement of Thomas J, I made orders in March, directed to the end of determining penalty in respect of the, by then, only remaining respondents (namely, the first, second and third respondents). Further directions to that end were made in May this year. 21 Balaska cannot be held in any way responsible for particular delays which can occur, as a result of the reservation of the judgment vis-a-vis Mr McLennan. But Balaska has contributed, nonetheless, to a particular course being taken in case management, as I have observed, as far back as October 2021. 22 I just cannot see any explanation which provides any occasion for the granting of leave to amend. 23 In prospect, were I to grant leave to amend, is not just allocation of time to deal with the first and third respondents, as planned, on 9 October, but a trial in respect of Balaska. 24 It is difficult to estimate how long that trial might take. Mr McLennan, I am informed, would be the witness for Balaska, and his evidence-in-chief would be that which is already on file. It does not follow from this, I think, that the cross-examination would necessarily be confined in the way it was at the trial before Thomas J. There is substance in the submission for the ACMA that the subjects for cross-examination would necessarily be different, with paras 10A and 11A of the proposed amended defence in effect providing a charter as to subjects for cross-examination. It may also be that a consequence of permitting the amendment would be a need for the ACMA at least to have an opportunity to make a forensic value judgement as to whether there was a need to supplement its existing evidentiary case. I do no more than acknowledge that possibility. But even to acknowledge that possibility is to contemplate a trial which seems inherently likely to be one which would take more than a day. Probably less than a week, but exactly what length in between, difficult at this point to say. 25 There was some agitation on behalf of the ACMA as to whether there was any point, having regard to proposed paras 10A and 11A, in allowing amendment and related withdrawal of admission. Reference was made to s 12 of the DNCR Act, which provides: 12 Agreements for the making of telemarketing calls must require compliance with this Act (1) A person (the first person) must not enter into a contract or arrangement, or arrive at an understanding, with another person, if: (a) there is a reasonable likelihood that the other person will give effect to the contract, arrangement or understanding by: (i) making telemarketing calls; or (ii) causing any or all of the employees or agents of the other person to make telemarketing calls; and (b) there is a reasonable likelihood that some or all of those calls will be made to Australian numbers that, under section 14, are eligible to be entered on the Do Not Call Register; and (c) the contract, arrangement or understanding does not contain an express provision to the effect that the other person will: (i) in any case - comply with this Act; and (ii) if subparagraph (a)(ii) applies - take all reasonable steps to ensure that the employees and agents of the other person comply with this Act; in relation to the making of telemarketing calls that are made in order to give effect to the contract, arrangement or understanding. Ancillary contraventions (2) A person must not: (a) aid, abet, counsel or procure a contravention of subsection (1); or (b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or (c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or (d) conspire with others to effect a contravention of subsection (1). Civil penalty provisions (3) Subsections (1) and (2) are civil penalty provisions. Note: Part 4 provides for pecuniary penalties for breaches of civil penalty provisions. Validity of contracts, arrangements or understandings (4) A failure to comply with subsection (1) does not affect the validity of any contract, arrangement or understanding. [emphasis in original] 26 It is apparent that there was no written agreement. But there is, I think, sufficient substance in the point made on behalf of Balaska that it does not necessarily follow from any contravention of s 12 - and there is no such contravention case presently alleged - that there could never be any merit in a s 11(5) defence, as proposed to be pleaded in paras 10A and 11A. So I do not take that subject into account in refusing leave to amend. 27 In the course of submissions, I also referred to what I recalled to be similar difficulties which can attend accused, endeavouring to withdraw pleas of guilty. In this regard, reference might be made to Meissner v The Queen (1995) 184 CLR 132, at 141 and 142; Maxwell v The Queen (1996) 184 CLR 501, at 510 to 511; R v McLean (2001) 121 A Crim R 484; and R v Wilkes (2011) 122 A Crim R 310. 28 In the criminal justice system, leave to withdraw a plea of guilty is not lightly given, but can embrace circumstances such as pressure and threats, or mistake, or erroneous legal advice. On reflection, I do not think it is necessary, in this case, which is governed by rules of civil practice, to draw analogies with criminal practice. It may be that with respect to mistake, there can be overlap, but it is best to confine the exercise of the discretion just to the civil practice authorities to which I have referred. 29 For these reasons, leave to amend is refused, and the interlocutory application is consequentially dismissed. 30 Reference was made, in resisting an order as to costs sought by the ACMA (which was that costs follow the event of dismissal of the interlocutory application), to an exchange of correspondence between solicitors beforehand. Without descending into any detail thereof, it is fair to say that the feature of withdrawal of an admission gained a much greater prominence in the written submissions filed by direction in advance, than in correspondence between solicitors. The submissions concerned were settled by counsel. And it is by no means unknown in practise, for greater forensic erudition to be lent to a case once counsel are retained. 31 The point in relation to costs is that the interlocutory application was pressed, even in the face of the preliminary submissions in writing. The exercise of discretion as to costs may well have been different in the event that the application was not pressed, but it was. And, in those circumstances, in my view, the discretion as to costs is best exercised now, rather than at some later stage, and exercised in the usual way, which is that costs follow the event. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.

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