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

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

[17]

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.

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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".

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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.

[23]

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 No. Consumer Location New or existing client Was a tax return prepared or lodged in 2012 and 2013?

MMH Santa Teresa Existing Yes
RS Warburton Existing Yes
SF Warburton Existing Yes
SS Warburton New No
VB Warburton Existing Yes
AM Balgo Existing Yes
AD Katherine New Yes
AL Balgo Existing No
AJJ Lajamanu Existing Yes
AL Balgo Existing Yes
AT Balgo Existing No
AT Balgo Existing No
AW Titjikala Existing Yes
AG Titjikala New Yes
BA Santa Teresa Existing Yes
BL Balgo Existing Yes
BM Balgo New Yes
BB Balgo Existing Yes
BL Ngaanyatjarra-Giles Existing No
CS Warburton Existing Yes
CHMS Balgo New Yes
CNG Balgo Existing Yes
CG Balgo Existing Yes
CT Warburton Existing Yes
CR Warburton Existing Yes
CM Balgo Existing Yes
CW Warburton Existing No
CW Titjikala New Yes
CMK Arlparra Store Existing No
CR Halls Creek Existing Yes
CG Balgo Existing Yes
CR Indulkana Existing Yes
CW Jameson Existing No
CN Balgo Existing Yes
CW Warburton Existing Yes
DR Balgo Existing Yes
DW Warburton Existing No
DL Warburton Existing Yes
DH Warburton Existing Yes
DG Willowra Existing Yes
DP Warburton Existing Yes
DM Balgo Existing Yes
EW Warburton Existing Yes
EM Titjikala Existing Yes
ENM Lajamanu Existing Yes
EW Warburton Existing Yes
FP Balgo Existing Yes
FW Balgo New Yes
GC Titjikala Existing Yes
GP Arlparra Store New No
GM Balgo Existing Yes
IT Mulan Existing Yes
JP Arlparra Store New Yes
JN Balgo Existing Yes
JPD Titjikala New Yes
JN Engawala Existing Yes
JW Warburton New Yes
JT Balgo Existing Yes
JM Balgo New Yes
JT Engawala Existing Yes
JN Balgo Existing No
JP Warburton Existing Yes
JF Lajamanu Existing Yes
KI Titjikala Existing Yes
CL Wirrimanu Existing Yes
KA Papunya Existing Yes
KAC Balgo Existing No
KLJ Tennant Creek Existing Yes
LW Warburton Existing Yes
LH Warburton Existing No
LL Balgo New Yes
LM Warburton Existing Yes
LP Mimili Existing No
LG Kiwirrkurra Existing No
LJD Titjikala New Yes
LB Balgo Existing Yes
LP Lajamanu Existing Yes
MJ Warburton Existing No
MN Balgo Existing Yes
MD Alice Springs Existing Yes
MM Tjuntjuntjara Existing No
MM Balgo Existing Yes
MN Balgo Existing Yes
MN Balgo Existing Yes
MP Titjikala Existing Yes
MM Balgo Existing No
MNC Arlparra Store Existing Yes
MAH Jameson Existing No
MD Finke Existing No
MS Warburton Existing Yes
MW Warburton Existing Yes
MM Wirrimanu Existing Yes
MG Balgo Existing Yes
MW Ngaanyatjarra-Giles Existing No
MC Lajamanu Existing Yes
MR Warburton Existing Yes
MH Jameson Existing Yes
NMS Balgo New Yes
NM Unknown Existing Yes
NN Kalkarindji Existing Yes
PC Billiluna Existing Yes
PTW Patjarr Existing Yes
PJ Kalkarindji Existing Yes
PM Balgo Existing Yes
PN Balgo New Yes
PD Titjikala Existing Yes
PJ Lajamanu Existing Yes
PNW Warburton Existing No
PB Balgo Existing Yes
PFI Titjikala New Yes
PM Balgo Existing Yes
RL Finke Existing No
RM Lajamanu Existing Yes
RCW Mimili Existing Yes
RD Warburton Existing Yes
SN Lajamanu Existing Yes
SMK Santa Teresa Existing Yes
SJC Willowra Existing Yes
SSC Finke Existing No
SC Balgo Existing Yes
SW Balgo Existing Yes
SN Ngaanyatjarra-Giles Existing No
SD Balgo Existing Yes
SJM Balgo Existing Yes
SAM Balgo Existing Yes
SW Warburton Existing Yes
SNF Lajamanu New No
SC Jameson Existing Yes
SB Titjikala Existing Yes
TB Warakurna Existing Yes
TS Balgo Existing Yes
TJA Warburton New Yes
UC Arlparra Store Existing Yes
VC Warburton New Yes
VH Wongatha Existing Yes
VN Balgo New Yes
WS Daguragu Existing Yes
WR Mantamara Existing Yes
BG Santa Teresa Existing No
AK Balgo Existing Yes
AW Engawala Existing Yes
AL Santa Teresa Existing No
AM Balgo Existing Yes
BJ Warburton Existing Yes
CMH Santa Teresa Existing Yes
CH Unknown Existing Yes
DS Jameson Existing Yes
DLP Titjikala Existing Yes
DM Arlparra Store Existing No
JW Ernabella Existing Yes
FJ Wiluna Existing No
FW Warburton Existing Yes
GN Balgo Existing Yes
GG Wangkatjungka Existing No
GB Arlparra Store Existing Yes
IP Engawala Existing No
JT Unknown Existing No
JP Willowra New Yes
DUPLICATE Existing Yes
JN Balgo Existing No
JT Arlparra Store Existing Yes
JM Balgo Existing No
JW Finke Existing Yes
KM Titjikala Existing Yes
LJ Lajamanu Existing Yes
LM Halls Creek Existing Yes
LJM Titjikala Existing Yes
LS Kalkarindji New Yes
LD Warburton Existing No
LR Lajamanu Existing Yes
LW Warburton Existing Yes
LM Santa Teresa Existing Yes
MT Titjikala Existing Yes
NT Seville Grove Existing No
NJ Lajamanu Existing Yes
PPL Aniltji Existing No
RP Warburton Existing No
RKP Santa Teresa Existing Yes
RB Balgo Existing Yes
RJ Arlparra Store Existing No
RM Broome Existing Yes
SM Jameson Existing No
SMV Kalkarindji New Yes
SV Kalkarindji Existing Yes
SN Ninga Mia Existing Yes
SJC Balgo Existing Yes
SW Balgo Existing No
SJ Lajamanu Existing Yes
TD Lajamanu New Yes
TD Engawala Existing Yes
TJT Engawala New Yes
TDG Halls Creek Existing Yes
VC Indulkana Existing No

[25]

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.

[26]

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)

[28]

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.

[30]

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.

[35]

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.

[38]

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.

[39]

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.

[40]

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.

[41]

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.

[44]

Factual findings 108 Before turning to the main issue identified above, I will briefly record my findings on the factual and evidentiary issues, which arise from the factual background set out above. Apart from the evidentiary issues, there were essentially two main factual issues: whether Mr Wright was invited to the communities concerned by one or more of the 191 consumers listed in Table B; and whether Mr Wright charged some, or all, of those 191 consumers more than $100 for the tax return services he provided to them. Dealing first with the evidentiary issues, I have reached the following conclusions: (a) Since their evidence was not challenged in cross-examination by Mr Wright, I accept the evidence of all of the Commission's witnesses: the 12 consumer witnesses, together with Ms Allison and Ms Vaughn. (b) For the following reasons, I do not accept Mr Wright's evidence that he charged a fixed fee of $100 to each client for the tax return services he provided in 2012 and 2013. First, based on the schedules prepared by Ms Allison, the accuracy of which I accept, the Centrepay Deduction Authority forms submitted by Adata provide contemporaneous records that, with two exceptions (consumers numbered 32 and 172), each of the other 189 consumers listed in Table B was required to pay (as a target amount), by way of deductions from their Centrelink benefits, at least $110 for the tax return services. Secondly, with one exception (Ms Mulda), the 12 witnesses whose witness statements were tendered by the Commission said that they paid, or were required to pay (as a target amount), by way of deductions from their Centrelink benefits, at least $110 for the tax return services. In Ms Mulda's case, she could not recall how much she was charged (see at [61] above). Thirdly, I do not accept Mr Wright's explanation that any amounts deducted, or to be deducted, in excess of $100 were for "outstanding accounts receivable". This claim was not supported by any of the 12 witnesses whose witness statements were tendered by the Commission and it is also contradicted by the evidence in relation to the two persons who were new clients and to whom no tax return services were supplied in 2012 and 2013 (see at [99] above). In this respect, I do not accept Mr Wright's explanation that those clients were charged for advice. I also reject that explanation insofar as it was advanced with respect to the 43 clients listed in Table B who did not receive any tax return services in 2012 or 2013 (see at [97] above). Apart from producing taxation invoices for these clients, which I do not accept were true copies of invoices that were actually rendered to any of those clients, Mr Wright did not produce any evidence that any of them had outstanding accounts receivable for the years 2012 or 2013. Finally, I accept that the Auscript transcript of the recording of Mr Wright's examination under s 155 was an accurate transcript and I therefore find that Mr Wright stated on a number of occasions during that examination that his standard fee to prepare a tax return during the relevant period was $110. The following is an example of such an admission taken from that transcript: MR STAR: So the standard rate for $110 for a income tax return, has that been the same - - - MR WRIGHT: Most of the time. MR STAR: For how many years has your rates been at that amount? MR WRIGHT: The first time I went to Santa Teresa, I think they charge - the other firm charged $99 and I might have stayed with $99 for one year and then I said, well it's $100 and then I, over the last five years, changed it to $110. MR STAR: Has it been $110 for about the last five years for an income tax return? MR WRIGHT: Yes. It might not have been that far back. I can't tell exactly. MR STAR: So if we go - - - MR WRIGHT: And it's not for every person, okay. I might just charge less or if there's a lot of work in it, I make sure that's $110. Okay. (c) Because the evidence was largely uncontested and consistent with other evidence, including the evidence of the 12 witnesses whose statements were tendered by the Commission, I accept Mr Wright's evidence about the invitations he received to visit the communities concerned, the practices he followed when supplying the tax return services to people at those communities and the details of his client base in the years leading up to and including 2012 and 2013, including his evidence that 43 of those listed in Table B did not receive any tax return services in the years 2012 and 2013 (see at [97] above). In this respect, I do not consider the adverse credit findings I have made above in relation to the fee Mr Wright charged for the tax return services adversely affects his credibility in relation to these matters. 109 Taking account of the conclusions I have reached on the evidentiary issues above, I make the following factual findings which all relate to the years 2012 and 2013: (a) When he charged a client a fee for the tax return services, Mr Wright usually charged a fee of more than $100. This applied to most, if not all, of the 191 consumers listed in Table B. (b) Mr Wright was not invited to any of the communities concerned by any of the 191 consumers listed in Table B. (c) However, Mr Wright was invited to many of the communities by either a senior local person, or by a person working in one of the government offices on the communities or he attended there to supply the tax return services to residents of the communities who were existing clients. (d) Prior to attending the communities, Mr Wright would usually send to the person identified in (c) above, by facsimile or email, a flyer which contained details of his services and the timing of his proposed visits to the communities. These flyers were then usually posted on a notice board or boards in the communities. (e) Further, Mr Wright's general practice when visiting the communities was to establish a temporary office, either in one of the government offices on the communities, or to set up a kiosk in or near the main service area of the communities. As well, he would, on occasions, erect an A-frame sign in that location to advertise his presence on the communities. (f) The people who approached Mr Wright at the temporary offices or kiosks that he established on the communities did so: either because they saw the flyers he arranged to have posted on notice boards on the communities in advance of his visit, or because they saw the A-frame sign or kiosk he had erected, or because they recognised his vehicle, or because they were told about his presence in the community by other residents. (g) All of the 12 Commission witnesses requested Mr Wright to supply the tax return services to them. I infer they did that either because they wished to obtain any refund to which they were entitled, or because they wished to comply with their obligations under the relevant taxation legislation, or both. While some of the 12 Commission witnesses complained that they did not receive a tax refund, and others about the amount of the refund they received, none said that they did not want the tax return services that were supplied to them. (h) I also infer that the tax return services supplied by Mr Wright were requested by each of the 191 consumers listed in Table B (whether existing or new clients) for the same reasons as I have identified above. (i) Mr Wright did not knock on doors, visit homes, or call on people uninvited, in order to solicit business while he was visiting any of the communities. (j) 43 of the consumers listed in Table B were not supplied any tax return services by Mr Wright. (k) By 2012, 26 of the consumers listed in Table B were new clients of Mr Wright and the balance were existing clients for whom he had prepared taxation returns in previous years. 110 Before concluding this section, I should record that I do not consider it is necessary for me, in disposing of this matter, to make any findings about the issue raised about the affidavit Mr Wright filed with the Court (see at [107] above).

[45]

The Commission's contentions 111 In its closing submissions, the Commission contended that the UCA provisions were deliberately cast in broad terms to provide the greatest possible range of protection to consumers and that they should therefore be given the broadest construction available to achieve that purpose. In support of this contention, the Commission placed particular reliance on the remedial or beneficial approach to the construction of legislation, such as the ACL. In particular, it submitted: "[T]here is a breadth to section 69 [of the ACL] … it's … deliberately not the old black letter prescriptive legislation … it can be adaptive to the ingenuity of marketing of businesses, of course subject to judicial consideration of fact finding in a particular case." 112 The Commission relied upon the Explanatory Memorandum to the Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (at [8.12]) to contend that the UCA provisions were not confined to sales practices such as door-to-door selling, but instead applied (but were not limited) to those traders "who do not have an established place of business but whose business models involve, for example, selling from trucks or the back of car space boots (sic), or trading in public places". Notwithstanding the constraints it would appear to place on a very broad range of sales activities of the same, or a similar kind, that occur daily throughout this country, such as a person leaving his or her usual place of business or trade and travelling to a neighbouring town or community to supply goods or services from a temporary office or kiosk of the "kind ordinarily acquired for personal, domestic or household use or consumption", the Commission did not resile from this construction. The Commission further contended that the only limitations that were to be placed on this broad construction of the UCA provisions were those found in s 69(3) and (4) of the ACL and the CC Regulations whereby agreements of a particular kind are (s 69(3)), or are not (s 69(4)), prescribed as unsolicited consumer agreements (see at [16] above). 113 Accordingly, the Commission contended that, by visiting the remote communities in question, setting up a kiosk or temporary office in a public area on those communities and entering into agreements to supply the tax return services, Mr Wright's activities were akin to door-to-door selling and therefore fell within the terms of the UCA provisions of the ACL. It also contended that Mr Wright's practice of sending a flyer in advance by facsimile to a person on those communities, so that those flyers could be placed on notice boards on the communities, or his practice of displaying signs advertising his services when he arrived at a community and the "interactions" between Mr Wright and each of the consumers prior to them entering into an agreement for him to provide the tax return services to them all fell within the expression "negotiations" under ss 72 and s 69(1)(b). 114 As well, the Commission contended that the word "place" in s 69(1)(b) was intended to be construed broadly and to depend upon the facts of each case. On that basis, it contended that the temporary kiosks and offices Mr Wright established on the communities concerned were all away from his usual place of business or trade in terms of s 69(1)(b)(i). It also contended that Mr Wright was not invited to go to any of the communities in question by any of the 191 consumers concerned, as required by s 69(1)(c). This was so, it contended, even though, in many instances, he had been invited to particular communities by a "senior local person or council office worker". Finally, the Commission claimed that the UCA provisions were designed to protect the Aboriginal consumers living in these remote communities from Mr Wright's selling activities. In this respect, it relied upon the fact that, for many of those people, English was not their first language and they were therefore vulnerable to his sales activities.

[46]

General principles on statutory construction 115 Before turning to consider these contentions, it is convenient first to say something briefly about the general approach to construing statutory provisions such as the UCA provisions. The most obvious starting point for such a sketch is the High Court decision in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky), where the plurality said (at [69]): The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. (Footnotes omitted) 116 Then, more recently, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 (Alcan) at [47] and Commissioner of Taxation v Consolidated Media Holdings Ltd (ACN 009 071 167) (2012) 293 ALR 257; [2012] HCA 55 (Consolidated Media Holdings) at [39], the High Court reiterated the critical importance of the statutory text but nonetheless stated that context, including legislative history and extrinsic materials, must be considered in determining the meaning of the statutory text. For example, in Consolidated Media Holdings, the High Court said (at [39]): "This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text". So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself. (Footnote omitted) 117 Similar observations were made by the Full Court of this Court in Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd (2014) 222 FCR 13; [2014] FCAFC 70 (Quikfund) when, after quoting parts of the High Court decisions in Project Blue Sky, Alcan and Consolidated Media Holdings above, the Court contrasted statutes drafted in broad terms with those which were "closely structured and finely worded", as follows (at [75]): The place of the context and purpose of a statute and their relationship with its text has also been the subject of detailed consideration by the High Court since 1990: see the cases referred to in Wilson v State Rail Authority of New South Wales (2010) 78 NSWLR 704 at [12]-[14]. Often, the relationship between context (including pre-enactment history), purpose and text will be illuminated by the subject matter of the statute, as well as by the approach to expression by the drafter. Statutes drafted in broad simple language that set a principled framework for a well-known body of law may well be approached with an eye to context, and especially pre-existing law. On the other hand, in legislation that is closely structured and finely worded, the importance of the text may be paramount: Joffe v The Queen (2012) 82 NSWLR 510 at [36]. Nevertheless, even in closely structured and finely worded legislation such as the TPA and ASIC Act, context and purpose may be important. Nothing in Alcan or Consolidated Media Holdings requires a decision about the clarity of meaning of text without reference to context and purpose. What was said in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 99; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 at [10]-[11] and in the other High Court cases cited in Wilson at [12]-[14] remains binding authority. (Emphasis added) 118 These observations therefore require regard to be had to a range of matters when construing the UCA provisions of the ACL. They include the legislative history to those provisions, any relevant extrinsic materials, the language and structure of the ACL as a whole, the general purpose and policy of the UCA provisions themselves and, finally, and most importantly, the statutory text of those provisions. I will now turn to examine these matters having regard to the Commission's contentions above. To begin, it is convenient to examine why the UCA provisions came to be included in the ACL in the first place.

[47]

Aspects of the background and context to the UCA provisions 119 Prior to January 2011, when the CCA came into effect, there were no provisions in the Trade Practices Act 1974 (Cth) (the TPA) that related generally to unsolicited selling. While there was some Commonwealth legislation applying to particular selling activities such as the Do Not Call Register Act 2006 (Cth) in relation to telephone sales practices; and ss 736, 992A and 992AA of the Corporations Act 2001 (Cth) prohibiting the hawking of securities, certain financial products and managed investment products, unsolicited selling was generally regulated by State and Territory legislation, such as the Fair Trading Acts operating in each jurisdiction. 120 In December 2009, the Ministerial Council on Consumer Affairs agreed that the various State and Territory legislative regimes covering unsolicited sales practices should be replaced by a single national law. Hence, the UCA provisions were included in the ACL when the CCA was passed by the Commonwealth Parliament in 2010. The Explanatory Memorandum for the Bill that resulted in the CCA (the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth)) explained that the expression "unsolicited sales practices" was intended to include door-to-door selling and telephone sales, as well as "other forms of direct selling which do not take place in a retail context" (paragraph 8.5). As the Commission has pointed out in its contentions (see at [112] above), the Explanatory Memorandum went on to say (at paragraph [8.12]) that the UCA provisions were also intended to apply to: … all forms of unsolicited direct selling which take place in a non-retail context, regardless of whether a supplier has a traditional 'bricks and mortar' business or trade premises. The provisions apply to suppliers who do not have an established place of business but whose business models involve, for example, selling from trucks or the back of car boots, or trading in public places. 121 Some illumination of the particular sales practices to which the UCA provisions are directed was provided by the Full Court in Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] ATPR 42-447; [2013] FCAFC 90 (Lux). In that case, the Commission sought declarations that the conduct of certain door-to-door vacuum cleaner sales persons was unconscionable in contravention of s 51AB of the TPA and s 21 of the ACL. After referring to the chapters of the Explanatory Memorandum (above), the Court said (at [10]): … The chapters pointed out some of the inequalities in the bargaining power involved in the conduct of door-to-door selling. The objective of regulation was to promote the operation of fair and efficient markets, by providing appropriate consumer protection, where the consumer is subject to vulnerability or disadvantage due to the nature of the sales process. The vulnerability of the consumer to the salesperson in her or his own home arises from the difficulty in putting an end to the sales process once the salesperson is in the home, especially after that person has spent time and undertaken persuasive effort in a sales process or "pitch". People can simply agree to things to put the situation at an end. These are not new revelations referable only to the operation of the ACL. They concern the basic psychology of salesmanship, taught by life experience and common sense, once entry has been gained to the privacy of a person's home. Ingratiating solicitude, just as much as high-pressure bullying sales tactics, may lead to a feeling of necessitous acceptance, especially by a polite and accepting person. In other words, special or particular care and attention to a customer can be just as effective as a sales tactic as high-pressure bullying. Further, the acquisition of comparative information is not often possible in the home, and reliance is necessarily placed on the truthfulness of the salesperson's information. Critical to the success of the sales conduct is the gaining of entry into the home, the winning of the confidence of the customer, and remaining long enough to persuade the customer to buy; entry into the home and length of time in the home are critical factors. (Emphasis added) 122 All of the above observations go to show that the UCA provisions of the ACL are directed towards particular kinds of unscrupulous sales practices. That is, those involving direct selling where the goods or services concerned are not requested by the consumer and where the selling does not occur in a normal retail environment such as a shop or supermarket, but instead usually occurs in the home of the consumer, or a similar environment, where he or she is vulnerable to the sales practices employed. This particular focus of the UCA provisions is also borne out by the structure of the ACL itself and the place in it where the UCA provisions appear. That structure distinguishes between general protection provisions (Chapter 2) and specific protection provisions (Chapter 3). The former chapter includes provisions which set general standards or norms of conduct, such as the well-known provisions dealing with misleading or deceptive conduct (s 18) and unconscionable conduct (s 20). The specific protective measures in the latter chapter are directed to particular kinds of conduct and transactions. Apart from the UCA provisions themselves, they include supplying unsolicited (debit or credit) cards (s 39), marketing pyramid schemes (ss 44 to 46), referral selling (s 49) and lay-by agreements (ss 96 to 99). Finally, it is worth noting the nature of the specific protective measures provided for in the UCA provisions. Essentially, they fall into five categories. First, constraints on the times and days when, and the circumstances in which, a dealer may call on a person to negotiate such an agreement (ss 73 to 74), or to continue such negotiations (s 75). Secondly, the information and documents a dealer must provide to a consumer in connection with an unsolicited consumer agreement (ss 76 and 78). Thirdly, the requirements a supplier must meet in relation to an unsolicited consumer agreement (ss 79 to 81). Fourthly, provisions for the operation of the cooling off period and the correlated right of a consumer to terminate an unsolicited consumer agreement within that period (ss 82 to 88). Fifthly, and finally, various miscellaneous provisions, including those related to void provisions in unsolicited consumer agreement, the waiver of rights etc (ss 89 to 95). 123 All of these factors, in my view, stand against the Commission's contentions that the UCA provisions should be given the broadest construction available. Further, in this instance, for the reasons expressed below, I do not consider those contentions are supported by the remedial or beneficial approach to construction upon which the Commission placed much reliance (see at [111] above).

[48]

The "fair" AND "Liberal" construction of remedial or beneficial legislation 124 This principle of construction is well-established. The High Court has made it clear since early last century that legislation which has been identified as remedial or beneficial legislation requires a "fair, large and liberal" interpretation. For example, in Bull v Attorney-General (New South Wales) (1913) 17 CLR 370 at 384, per Isaacs J (dissenting): In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially ... This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow. 125 The High Court has repeated similar views more recently in IW v City of Perth (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J; in AB v State of Western Australia (2011) 244 CLR 390; [2011] HCA 42 at [24] per French CJ, Gummow, Hayne, Kiefel and Bell JJ; and with particular reference to the TPA, in Devenish v Jewel Food Stores Pty Limited (1991) 172 CLR 32 at 44 per Mason CJ; and Webb Distributions (Aust) Pty Ltd v Victoria (1993) 179 CLR 15 at 41 per McHugh J. 126 However, the Court has also made it clear that this principle is not to be applied without qualification. In Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260; [2003] HCA 54, Heydon J (with whom McHugh ACJ, Gummow, Kirby and Hayne JJ agreed) expressed the qualification in these terms (at [33]): To begin consideration of issues of construction by positing that a "liberal", "broad", or "narrow" construction will be given tends to obscure the essential question, that of determining the meaning the relevant words used require. Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. ... It is difficult to state the legislative purpose except at such extreme levels of generality that it is not useful in construing particular parts of the legislative language. As Spigelman CJ said: "The issue before the Court is the determination of the circumstances in which compensation is payable." The legislation has endeavoured to define these circumstances in precise language which does not permit universal recovery; and hence "[t]he Court is not required to give the most expansive possible interpretation of such circumstances". (Footnotes omitted) 127 In the judgment of Spigelman CJ in Victims Compensation Fund v Brown (2002) 54 NSWLR 668; [2002] NSWCA 155 (Brown), part of which was quoted by Heydon J above, his Honour also made the following pertinent observations (at [9]): In a passage that has been frequently cited with approval (see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 248; Brennan v Comcare (1994) 50 FCR 555 at 574; Morrison v Peacock (2000) 50 NSWLR 178 at 187 [33]), the Supreme Court of the United States said in Rodriguez v United States 480 US 522 (1987) at 525-526: "… No legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice - and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law." 128 More recently, in Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36 (Crennan, Kiefel, Bell, Gaegler and Keane JJ), the Court referred (at [40]) to the judgment of Gleeson CJ in Carr v State of Western Australia (2007) 232 CLR 138; [2007] HCA 47 (Carr) at [5], which included the following observations: … In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. As to federal legislation, that approach is required by s 15AA of the Acts Interpretation Act 1901 (Cth). It is also required by corresponding State legislation, including, so far as presently relevant, s 18 of the Interpretation Act 1984 (WA). That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem … 129 Gleeson CJ went on to observe in Carr (at [6]): "Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling." 130 These observations are particularly pertinent in this case. That is so because, in its contentions above, the Commission has essentially taken the approach rejected by Spigelman CJ in Brown (at [127] above): assuming that whatever furthers the consumer protection objectives of the UCA provisions must be the law. In taking that position it has ignored, or at least waived away, any other competing purposes and interests that may be in play. So much is apparent from its contentions above (at [112]) which seize on the assertions made in the Explanatory Memorandum to advance the proposition that the UCA provisions extend as far as, but are not limited to, essentially any trader who employs an ambulatory approach to their trading whether that occurs in public places or not. While it is undoubtedly the case that some such traders may use the unscrupulous sales practices that are the target of the UCA provisions, I do not consider that fact alone justifies such a broad construction being given to those provisions. Apart from anything else, such a construction impinges upon the freedom of the citizens of this country to engage in legitimate trading and commercial activities, a freedom that has been recognised by the common law for more than three centuries: see Mitchel v Reynolds (1711) 1 P WMS 181, 24 ER 347, Nordenfelt v Maxim Nordenfelt Guns and Ammunition Company, Limited [1894] AC 535 (Nordenfelt) (at 565) and, in the High Court, Bacchus Marsh Concentrated Milk Company Limited (In Liq) v Joseph Nathan & Co Ltd (1919) 26 CLR 410, Peters American Delicacy Company Limited v Patricia's Chocolates & Candies Pty Ltd (1947) 77 CLR 574 and Williams v Hursey (1959) 103 CLR 30. 131 For these reasons, I do not consider the remedial or beneficial approach to construction supports the Commission's contentions that the UCA provisions should be given the broadest construction available. True it is that they should be construed so as to provide the fullest measure of protection to the consumer that a fair meaning of their text will allow. However, in determining that construction, I consider one must keep firmly in mind the nature and circumstances of the unscrupulous sales practices that are the specific target of the UCA provisions, the fact that those provisions are intended to be specific protection measures as identified above (see at [122]-[123]) and the competing purposes and interests I have mentioned above. Nonetheless, while these matters provide some general guidance on the approach one should take to the construction of the UCA provisions, it is, as has already been pointed out above, the text of those provisions which is of critical importance in that task. That is the subject to which I will finally turn.

[50]

Section 69(1)(b) - "negotiations" 133 Section 69(1)(b) relevantly provides that an agreement is an unsolicited consumer agreement if "it is made as a result of negotiations between a dealer and the consumer … in each other's presence at a place other than the business or trade premises of the supplier of the … services …". The commencing words of the subsection - "is made as a result of" - are obviously significant because they establish a requirement for a causative link between the negotiations and the agreement. The next word, "negotiations", is also a crucial component of the definition. The expression "negotiation" is defined in inclusive terms in s 72 (see at [11] above). It identifies, as included within its terms, any "discussion or dealing" and it reinforces the causative link mentioned above by requiring that the negotiation must be "directed towards the making of the agreement or proposed agreement". It then reiterates the inclusive nature of the definition by concluding with the words in brackets: "whether or not the terms of the agreement or proposed agreement are open to any discussion or dealing". 134 Despite the inclusive terms of the definition of "negotiation" in s 72, I consider that expression is confined in its operation within the definition of "unsolicited consumer agreement" in s 69(1) by the following provisions of s 69(1)(b). First, s 69(1)(b) requires that the negotiations must be "between a dealer and the consumer". The expression "dealer" is defined in s 71 of the ACL (see at [11] above). That definition requires that person to be someone who "enters into negotiations with a consumer" and that those negotiations be "with a view to making an agreement" for the supply of the services in question. As well as reinforcing the causative link mentioned above, the words "enters into negotiations" introduce another significant element, namely a requirement that it is the dealer who has to initiate the negotiations with the consumer. Further support for this is provided in the expressions used elsewhere in the UCA provisions such as subdivision B of Division 2 where constraints are placed on a dealer when "Negotiating Unsolicited Consumer Agreements", to wit: "a dealer must not call on a person for the purpose of negotiating …" (s 73), "a dealer who calls on a person for the purpose of negotiating an unsolicited consumer agreement …" (s 74), and "a dealer who calls on a person at any premises for the purpose of negotiating …" (s 75) (emphasis added). On this aspect, it is also worth noting that the specific protective measures provided by the UCA provisions (see at [122] above) are primarily directed to allowing a consumer the right to reject unwanted or unsolicited goods or services supplied as a result of an agreement entered into after particular kinds of unscrupulous sales practices were employed. All these provisions, together therefore serve to characterise the negotiations and the agreement which results as unsolicited, or unrequested, by the consumer. 135 Returning to the text of ss 69(1)(b), the words "between a dealer and the consumer" plainly require a direct bilateral interaction between those two specifically defined individuals: as is already noted above, "dealer" is specifically defined in s 71 and "consumer" is defined in s 3(3). Further, the subsection goes on to require that that interaction must occur "in each other's presence", thus requiring the personal attendance of both. Further still, s 69(1)(b) specifies that the "place" where these two individuals are to meet for the negotiations must be at "other than the business or trade premises of the supplier of the goods or services". Notably, this does not exclude, nor say anything about, the business or trade premises of the dealer. It does not, for example, exclude the dealer selling from a truck, or trading from a kiosk in a public place (cf the Explanatory Memorandum upon which the Commission particularly relied quoted at [112] above). Finally, it should be noted that the provisions of s 69(1)(c) relating to the expression "place" discussed below are also pertinent to the particular place or location where the negotiations are to occur. 136 It can be seen from this examination of the text of s 69(1)(b) that its provisions are, to use the description of the Full Court in Quikfund, "closely structured and finely worded". The text of the subsection is quite specific as to the persons who must be involved, and the circumstances, the location and the nature and purpose of the dealings or "negotiations" between them, before any agreement which results can be characterised as an unsolicited consumer agreement. More importantly for present purposes, by its specificity, I consider the text of the subsection necessarily excludes a broad range of agreements from being so characterised. This includes agreements for the supply of services that are substantively sought or requested by the consumer and cannot therefore be characterised as unsolicited or unrequested. It also includes agreements which do not result from any prior negotiations because such are unnecessary in the circumstances. That may arise where the supplier has, by public notice or advertisement, informed potential consumers of the nature of his or her services and the conditions upon which they will be supplied including the price and the consumers concerned are willing to accept those conditions and pay the price without further ado. This could also arise where the consumer is an existing client of the supplier and, as a result, he or she is aware of the conditions upon which the supplier's services are supplied.

[52]

General observations 138 Before turning to apply these observations about the construction of the definition in s 69(1) of the ACL, it is appropriate that I should deal with the other main contentions advanced by the Commission above (at [111]- [114]). First, while the Commission's contention related to the language vulnerabilities of some of the 191 consumers listed in Table B (see at [114] above) may have been relevant if this proceeding had involved a claim that Mr Wright's conduct was unconscionable, I fail to see how it is relevant to the present claim. The agreements in question were either unsolicited consumer agreements as defined in s 69(1), or they were not. As discussed above, that definition indisputably focuses on the vulnerabilities associated with the location and circumstances of the negotiations between the dealer and the consumer, however it does not address the relative bargaining powers or vulnerabilities of the parties to those negotiations. I do not therefore consider the language vulnerabilities relied upon by the Commission are engaged by that definition. Secondly, I consider the Commission's contention about the effect of s 69(3) and 69(4) and the CC Regulations (see at [112] above) can be rejected at two levels. In the first place, as I have already observed above at [16]), none of those provisions applied in this case. More importantly, the definition in s 69(1) has to be construed according to its text as passed by the Parliament, not by reference to what the Executive has decided by regulation after the passage of that legislation to exclude from, or include within, its terms. In other words, I reject the notion that seems to be implicit in the Commission's contention that the definition in s 69(1) covers all sales practices which take place in a non-retail context except those excluded by the CC Regulations. No authority was provided for that bold proposition. That may not be surprising because, on its face, it would present a serious affront to the operation of the rule of law in this country. Thirdly, and finally, I return to the central thrust of the Commission's contentions that the UCA provisions should be given the broadest construction available and add these concluding observations. The construction of the definition in s 69(1) of the ACL outlined above is not only apparent from the text of that definition, but it is also supported by the contextual matters I have discussed in some detail above. They include the specific kinds of sales practices that are the target of the UCA provisions, the nature of the specific protection measures that are provided in those provisions and the need to achieve a balance between ensuring the fullest protection is provided to the consumer in the circumstances addressed by the provisions and, at the same time, restricting to the least extent the freedom of people in this country to engage in trade and commerce. 139 When my observations above about the construction of the UCA provisions, and particularly the definition of the expression "unsolicited consumer agreement" in s 69(1), are applied to the facts as I have found them in this case, I consider the following conclusions are to be drawn: (a) Since the tax return services supplied by Mr Wright in 2012 and 2013 were sought or requested by each of the 191 consumers listed in Table B, either because they wished to obtain any tax refund to which they were entitled, or because they wished to comply with their obligations under the relevant taxation legislation, or both, the agreements to supply those services were not unsolicited consumer agreements as defined in s 69(1) of the ACL. That is so because they were agreements for services that were substantively sought by the 191 consumers concerned, not agreements resulting from negotiations initiated by Mr Wright as required by that section. (b) Subject to any permit or other similar requirements about which there is no issue, the expression "place" in s 69(1) does not extend to include any of the remote communities that Mr Wright visited in 2012 or 2013. That is so because they were all places to which the general public had access and he did not therefore require an invitation from a "consumer" on one of those communities before he could visit and offer to supply his tax return services to the residents of that community. (c) Further, the expression "place" in s 69(1) does not include any public place within any of those communities, including any of the temporary kiosks, offices or other places on those communities from which Mr Wright supplied his tax return services. Again, it follows that he did not require a specific invitation from a consumer to attend at any of those places in 2012 and 2013 before he could supply his tax return services from them. (d) On the other hand, the expression "place" in s 69(1) does include any private residences on those communities and consequently Mr Wright required a specific invitation from the consumer who was the occupier or owner of a residence before he could attend there for the purposes of entering into negotiations for an agreement to supply his tax return services. However, I have found that Mr Wright did not do this while he was on any of the communities concerned in 2012 and 2013. (e) Finally, none of the flyers that Mr Wright sent to persons on those communities, prior to any of his visits there, so that those flyers could be posted on notice boards on the communities, nor any of the signs or billboards he erected or caused to be posted on any of those communities informing the residents who lived there that he was available to perform the tax return services, nor his practice of establishing a temporary office or kiosk in a public place on any of the communities and waiting for clients to attend to seek his tax return services, constituted "negotiations" for the purpose of the definition in s 69(1) of the ACL. The Commission's contentions to the contrary above (at [113]) must therefore be rejected. 140 It follows from these conclusions that none of the agreements that Mr Wright entered into with the 191 consumers listed in Table B was an unsolicited consumer agreement as defined in s 69(1) of the ACL. It follows further, therefore, that Mr Wright has discharged his onus under s 70(1)(b) of the ACL (see at [9] above). Finally, because of these conclusions, it is unnecessary for me to determine the other issues raised by the Commission above, including who supplied the tax return services (see [17(b)] above) and whether any contraventions of ss 76, 78, 79 or 86 of the ACL occurred (see [17(c) above]).

Australian Competition and Consumer Commission v A.C.N. 099 814 749 Pty Ltd

At a glance

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