Australian Competition and Consumer Commission v European City Guide S L

THE COURT ORDERS THAT: 2. The respondent pay 98% of the applicant's costs as agreed or taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 879 of 2009

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

JUDGE: MOORE J DATE: 22 July 2011 PLACE: SYDNEY

Introduction 1 European City Guide SL (ECG) is a company registered in Valencia, Spain. It portrays its business as providing a listing and directory service for businesses and organisations through its "Industry and Commerce" Website (the "ECG Website") and a CD-Rom it publishes periodically. Between 2006 and 2009, ECG sent businesses and organisations in Australia forms (the "Form") offering to provide, for a cost, advertising on both the ECG Website and CD-Rom. Businesses who completed, signed and returned the Form would then, it can be assumed, have had their details listed at a cost per annum of between AUD $1,200 and AUD $1,600 for a minimum subscription period of 3 years. 2 The Australian Competition and Consumer Commission (ACCC) instituted proceedings against ECG on 18 August 2009. The ACCC alleged ECG's conduct involved contravention of ss 52 and 53 of the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth)) ("the Act"). The ACCC sought declarations under s 21 of the Federal Court of Australia Act 1976 (Cth) and injunctions and other orders under ss 80 and 86C of the Act. In these reasons I will refer to the section numbers as they appeared in the Act at the time the proceedings were commenced notwithstanding that relevant sections have been renumbered (and their terms sometimes varied but not materially) by the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth). The alleged unlawful conduct relates to two distinct, yet related matters. One concerns the Forms sent out by ECG to businesses in Australia and the other concerns the ECG Website.

The ACCC's case in overview 3 It is convenient, at this point, to describe in a summary way the case the ACCC advanced. In its pleadings, the ACCC alleged that the Forms sent out by ECG to various businesses and organisations were misleading and deceptive, or likely to mislead and deceive. In summary and somewhat simplified, the case of ACCC was, as ultimately advanced at trial, that: The Forms purported to be sent by an agency related to the Australian Government, when in fact, the Forms had been sent by ECG, a company not in any way affiliated with or related to the Australian Government. Each Form suggested it contained information concerning the Australian business to which it was sent which had already been published on a register maintained by an agency associated with the Australian Government, when in fact, the Form did not contain information concerning the business which had been published on a register maintained by an agency relating to the Australian Government (the "Register"). Each Form was sent and was to be completed to ensure that the details of the Australian business to which it was sent had been accurately recorded on the Register and there would be no charges in confirming the accuracy of the details, when in fact, by signing and returning the Forms to ECG to confirm the accuracy of information contained in the Forms, the business would charged by ECG by way of subscription an amount of between AUD $1,200 and AUD $1,600 annually with the minimum initial subscription term being 3 years. 4 In sending out these misleading and deceptive Forms, ECG engaged, so it was alleged, in misleading and deceptive conduct or conduct likely to mislead or deceive which was conduct proscribed by the Act. 5 As to the ECG Website, the ACCC alleged that it was misleading and deceptive, or likely to mislead and deceive. Again, in summary and somewhat simplified the ACCC contended that: The ECG Website claimed it provided a means of obtaining accurate and comprehensive information in a fast and efficient way about industry and commerce in Australia, when, in fact, the ECG Website was not an accurate, comprehensive, fast or efficient means of obtaining information about industry and commerce in Australia. The ECG Website claimed it was one of Australia's leading business-to-business search engines, when in fact, it was not one of Australia's leading business-to-business search engine. The ECG Website claimed it provided a business's advertisement with the potential to reach a vast target audience throughout Australia and beyond, when in fact, business advertisements published on the ECG Website did not have the potential to reach a vast target audience either in Australia or beyond. The ECG Website claimed it was a user-friendly database, when in fact, it was not user-friendly. The ECG Website claimed it provided the capacity to search for listings of businesses using several key criteria, when in fact, it did not provide the capacity to search for listings of business using several key criteria. 6 In maintaining the ECG Website with these characteristics, ECG engaged, so it was alleged, in misleading and deceptive conduct or conduct likely to mislead or deceive which again was conduct proscribed by the Act. 7 I can, though intending no particular legal precision, focus or consequences, illustrate what the proceedings concern with a number of rhetorical questions concerning the circumstances of two of the witnesses called by the ACCC. Traralgon is a town in south-eastern Victoria. Is it likely that the proprietors of a business in Traralgon selling cartridges for printers and photocopiers would have seen some commercial advantage in advertising their business nationally (perhaps with a view to selling cartridges in other states) and internationally (perhaps with a view to selling cartridges in other countries)? Or was it simply that they perceived some commercial advantage flowing from potential customers in their local community becoming aware of their business by searching a website maintained by a Spanish company, for suppliers of cartridges in that community? If they did not see a commercial advantage of this type what might explain them entering (at a not insignificant cost to them) an agreement with the Spanish company to provide national and international promotion? Similarly, is it likely that the proprietors of a small mobile dog washing and grooming business run from an outer suburb of Adelaide in South Australia would have seen some commercial advantage in advertising their business nationally (perhaps with a view to washing and grooming dogs in other states) or internationally (perhaps with a view to washing and grooming dogs in other countries)? Or was it simply that they perceived some commercial advantage flowing from potential customers in their local community becoming aware of their business by searching a website maintained by a Spanish company, for mobile dog washers and groomers in that community? If they did not see a commercial advantage of this type what might explain them entering (at a not insignificant cost to them) an agreement with the Spanish company to provide national and international promotion?

The evidence 8 Central to the evidentiary case of the ACCC were the ECG Forms themselves. Unsurprisingly, their content was not in issue nor was the fact that they had been sent to Australian businesses in the relevant periods. In the period in question (2006 to 2009) the content of the Forms changed a little. During 2006 and 2007, ECG sent by post to businesses throughout Australia Forms headed "Industry and Commerce 2006" (the "2006 Form") or "Industry and Commerce 2007" (the "2007 Form"). The 2006 Form and 2007 Form were printed on 2 sheet A4 size carbonless copy paper with print appearing on both sides. A copy of the 2007 Form has been reproduced as Schedule 1 to these reasons. 9 The 2006 Form and 2007 Form contained on the front page: (a) An Australian flag in colour (and measuring approximately 2.5 cm by a little less than 1.5 cm) at the top left hand corner of the page, to the right of the flag the title "INDUSTRY AND COMMERCE 2006" and immediately below the words "Register of Business Information" or "INDUSTRY AND COMMERCE 2007" and immediately below the words "Register of Business Information", and to the right of the title a picture of an envelope next to the words "Please return in the enclosed envelope"; (b) In very small print running vertically upwards in the left hand margin of the form from the bottom of the page the words "MARTÍNEZ CUBELLS 6, 4°, 8a, E - 46002 VALENCIA - FAX: +34902 36 34 71 - This company is not linked to the institutions or agencies of the Australian Government - N.I.F.ES B - 60820305". The print in the sentence commencing "This" and concluding with the word "Government" was, in relation to the letters in lower case, barely more than 1 mm high and, in relation to the letters in upper case, slightly less than 2 mm high; (c) At the top part of the page at the left hand side, a box in which the name and address of the business or organisation was typed; (d) At the top part of the page on the right hand side next to the box referred to in 9(c) the words: Dear Sirs, The Register of Business Information is presently being updated. Filling in this form would ensure that your company is positively and correctly presented. We would be grateful if you would check your details and return this form with additional information about your products and services as soon as possible for the opportunity to be published in the Australian section of our international CD-ROM and on the Internet. Thank you in advance for your co-operation. (Original emphasis) (e) Below the box and words referred to in 9(c) and 9(d) the words: Please check your address carefully, for an update of the data, complete the form and return it in the enclosed envelope. The updating is cost free. Only sign if you want to place an insertion. (Original emphasis) (f) Below the words in 9(e) at the left hand side of the page a rectangular box with the words "PLEASE INDICATE YOUR ACTIVITY" directly above it; (g) Below the words in 9(e) at the right hand side of the page a rectangular box with the words "Additional Business Information" directly above it; (h) Below the boxes referred to in 9(f) and 9(g) a list of 36 business or organisational activities each with an adjacent small box to be checked if applicable grouped under the headings: (i) Commerce; (ii) Industry; and (iii) Services; (i) Below the list of business or organisational activities in 9(h) the following words with spaces adjacent for the entry of information: (i) Name of the company; (ii) Phone; (iii) Address; (iv) Fax; (v) Postcode/City; (vi) Web; (vii) Established; (viii) Contact person; (ix) Number of employees; (x) Number of branches; (xi) Product/Service; (j) Below the words and spaces in 9(i) at the bottom quarter of the page the words: Order: Please return this document accompanied by your signature/company stamp in the appropriate space below if you would like to place an order. This implies a cost that will be detailed according to the following conditions: by means of this form and in accordance with the contract conditions stated overleaf, we give the publishing company, E.C.G., S.L., authorisation to record and publish data and information listed above in the next and following two editions of Industry and Commerce (CD-Rom-Internet), arranged according to cities, countries, trade or professional activity, in the form of an advertisement. The cost per edition is AUD 1200. One CD-Rom for each edition will be delivered to the advertiser at no extra cost. This order will be extended each year by a further edition unless specific notice otherwise is received in writing three months before the end of the calendar year. The publishing house reserves the right to edit and illustrate the text. Our data will be electronically recorder. The place of jurisdiction is the editor's address in the case of action being taken by either party. The present contract is governed by the conditions overleaf. (Original emphasis) (k) Below the words in 9(j) at the left hand side of the page the word "Date" and an underlined space directly above for the date to be entered; (l) Below the words in 9(j) at the right hand side of the page the words "Legal Signature/Company Stamp" and an underlined space just above for the signature or stamp to be executed; (m) Below the words and spaces in 9(k) and 9(l) a rectangular box with the words "To be returned" within. 10 The front page of the second sheet of carbonless copy paper on the 2006 Form and 2007 Form was exactly the same as the front page of the first sheet, except that the words "To be returned" in 9(m) were replaced with the words "Your copy". 11 On the reverse side of the first page of the 2006 Form and 2007 Form were written in faint print the terms that the orders were subject to. These terms provided: 1. All orders are governed by the terms stated hereinafter. Acceptance of any modification of these terms shall be subject to the publisher's prior written agreement. By sending his/her order, the subscriber accepts these terms unless he/she sends a cancellation within a period of 7 (seven) days after the date of the signing/stamping of the order note, after which the contract shall come into force. To be effective, the cancellation must be given in writing, either using the coupon provided for this purpose at the bottom right of this page or by any other means. The cancellation must be sent by registered post with confirmation of receipt. 2. The subscriber must provide exact details of his/her business and/or his/her professional activity. On the basis of these details, a proof copy shall be drawn up and sent to the subscriber so that he/she may, within a period of four weeks after the date of the invoice (unless stated otherwise), make such corrections or alternations as he/she may consider appropriate and return them to the publisher. Upon expiry of this period without receiving such corrections or alteration, the advertisement shall be published in its original form. Should errors appear in the publications, and these errors are based on the details provided by the subscriber, the subscriber shall be the only person liable for such errors. 3. In conformance with Law 15/1999 of 13th December, the present form may contain personal data originating from public records; said data is included in a registered file at the agency of data protection whose title is E.C.G., S.L. (Martinez Cubells 6, 4˚ pta. 8, E- 46002 Valencia. Fax: +34 902 363 471). If you would like to exercise your right to correct, delete or access your data, you may contact E.C.G., S.L. Furthermore, the adhesion to the present contract entails the provision of your consent for the revealing of the collected personal data to, and the access of, third parties who participate and act directly for E.C.G., S.L. within the framework of the present contract. 4. The CD-Rom is published once a year. In the event that the publisher should have published incorrectly the details provided by the subscriber, the subscriber shall be entitled to a free insertion in a subsequent issue, after completion of existing contractual obligations. 5. Decisions relating to advertisement positioning in certain sections of the CD-Rom, Internet, or the designated categories are at the discretion of the publisher. 6. Unless agreed otherwise beforehand by the publisher, the price stated corresponds to the price of one insertion in one issue, and is payable three weeks from the date of the invoice. In the event of an extension of the contract under the terms defined in the ORDER section, the price of the insertion for each issue shall continue to be that originally stated. 7. In order to be effective, all undertakings notified verbally to the publisher's employees must be necessarily confirmed in writing. 8. The format of the insertion will be 600 x 350 pixel. 12 The same writing appeared on the reverse of the second page as on the reverse side of the first page of the 2006 Form and 2007 Form but included one addition. Below the previously mentioned 8 terms in [11] were some additional words, also written in faint print. The words were: …………………………………………………………………………………………. Cancellation notice: E.C.G., S.L. MartÍnez Cubells 6 - E - 46002 Valencia Contract Number Date LEGAL SIGNATURE/STAMP First name and Surname of the signatory 13 During 2008 and 2009, ECG sent by post to businesses throughout Australia Forms headed "Industry and Commerce 2008" (the "2008 Form") or "Industry and Commerce 2009" (the "2009 Form"). The 2008 Form and 2009 Form were printed on 2 sheet carbonless copy paper with print appearing on both sides. A copy of the 2009 Form has been reproduced as Schedule 2 to these reasons. 14 The 2008 Form and 2009 Form contained on the front page: (a) A picture of the Australian flag in colour (and measuring approximately 2.5 cm by a little less than 1.5 cm) at the top left hand corner of the page, to the right of the flag the title "INDUSTRY AND COMMERCE 2008" and immediately below the words "Register of Business Information" or "INDUSTRY AND COMMERCE 2009" and immediately below the words "Register of Business Information", and to the right of the title a picture of an envelope next to the words "Please return in the enclosed envelope"; (b) In very small print running vertically upwards in the left hand margin of the form from the bottom of the page the words "EUROPEAN CITY GUIDE, S.L., MARTÍNEZ CUBELLS 6, 4°, 8a, E - 46002 VALENCIA - FAX: +34902 36 34 71 - This company is not linked to the institutions or agencies of the Australian Government - N.I.F.ES b - 60820305". The print size was the same as described for the 2006 Form and the 2007 Form; (c) At the top part of the page at the left hand side, a box in which the name and address some of the business or organisation was typed; (d) At the top part of the page on the right hand side next to the box referred to in 14(c) the words: Dear Sirs, The Register of Business Information is presently being updated. Filling in this form would ensure that your company is positively and correctly presented. We would be grateful if you would check your details and return this form with additional information about your products and services as soon as possible for the opportunity to be published in the Australian section of our international CD-ROM and on the Internet. Thank you in advance for your co-operation. (Original emphasis) (e) Below the box and words referred to in 14(c) and 14(d) the words: Please check your address carefully, for an update of the data, complete the form and return it in the enclosed envelope. Only sign if you want to place an insertion. (Original emphasis) (f) Below the words in 14(e) and in the left side of the page a box with 7 fields headed "Your current address and contact details" and containing in the subsequent fields below the words: (i) Name of the company; (ii) Street; (iii) Postal Code/City; (iv) Country; (v) Telephone No.; (vi) Fax No.; (vii) URL; These fields contained typed words in grey font as sent by ECG of the business' or organisation's current details; (g) Below the words in 14(e) and in the right side of the page a box with 7 fields headed "Please make your corrections" and containing in the subsequent fields below the words: (i) Name of the company; (ii) Street; (iii) Postal Code/City; (iv) Country; (v) Telephone No.; (vi) Fax No.; (vii) URL; These fields were left blank except for a small red triangle in the left of each field; (h) Below the box in 14(f) a box with one field headed "Your current trade data" and containing in the subsequent field typed words in grey font as sent by ECG of the business's or organisation's current details; (i) Below the box in 14(g) a box with one field headed "Please make your corrections" and containing no words, only a small red triangle in the left of the field; (j) Below the boxes in 14(h) and 14(i) on the 2008 Form the words: Order: Please return this document accompanied by your signature / company stamp in the appropriate space below if you would like to place an order. This implies a cost that will be detailed according to the following conditions: by means of this form and in accordance with the contract conditions stated overleaf, we give the publishing company, European City Guide S.L., authorisation to record and publish data and information listed above in the next and following two editions of Industry and Commerce (CD-Rom-Internet), arranged according to cities, countries, trade or professional activity, in the form of an advertisement. The cost per edition is AUD 1,300.00. One CD-Rom for each edition will be delivered to the advertiser at no extra cost. This order will be extended each year by a further edition unless specific notice otherwise is received in writing three months before the end of the calendar year. The publishing house reserves the right to edit and illustrate the text. Our data will be electronically recorded. The contact details of the client defence service can be found on the reverse of this document. The place of jurisdiction is the editor's address in the case of action being taken by either party. The present contract is governed by the conditions overleaf. (Original Emphasis) (k) Below the boxes in 14(h) and 14(i) on the 2009 Form the words: Order: Please return this document accompanied by your signature / company stamp in the appropriate space below if you would like to place an order. This implies a cost that will be detailed according to the following conditions: by means of this form and in accordance with the contract conditions stated overleaf, we give the publishing company, European City Guide S.L., authorisation to record and publish data and information listed above in the next and following two editions of Industry and Commerce (CD-Rom-Internet), arranged according to cities, countries, trade or professional activity, in the form of an advertisement. The cost per edition is AUD 1,600.00. One CD-Rom for each edition will be delivered to the advertiser at no extra cost. This order will be extended each year by a further edition unless specific notice otherwise is received in writing three months before the end of the calendar year. The publishing house reserves the right to edit and illustrate the text. Our data will be electronically recorded. The contact details of the client defence service can be found on the reverse of this document. The place of jurisdiction is the editor's address in the case of action being taken by either party. The present contract is governed by the conditions overleaf. (Original Emphasis) (l) Below the words in 14(j) or 14(k) at the left hand side of the page the word "Date" and an underlined space directly above for the date to be entered; (m) Below the words in 14(j) or 14(k) at the right hand side of the page the words "Legal Signature/Company Stamp" and an underlined space just above for the signature or stamp to be executed; (n) Below the words and spaces in 14(l) and 14(m) a rectangular box with the words "To be returned" within. 15 The front page of the second sheet of carbonless copy paper on the 2008 Form and 2009 Form was exactly the same as the front page of the first sheet, except that the words "To be returned in" 14(n) were replaced with the words "Your copy". 16 On the reverse side of the first page of the 2008 Form and 2009 Form were written the 9 terms that the orders were subject to. Terms 1 - 8 were written in faint print, and provided: 1. All orders are governed by the terms stated hereinafter. Acceptance of any modification of these terms shall be subject to the publisher's prior written agreement. By sending his/her order, the subscriber accepts these terms unless he/she sends a cancellation within a period of 15 (fifteen) days after the date of the signing/stamping of the order note, after which the contract shall come into force. To be effective, the cancellation must be given in writing, either using the coupon provided for this purpose at the bottom right of this page or by any other means. The cancellation must be sent by registered post with confirmation of receipt. 2. The subscriber must provide exact details of his/her business and/or his/her professional activity. On the basis of these details, a proof copy shall be drawn up and sent to the subscriber so that he/she may, within a period of four weeks after the date of the invoice (unless stated otherwise), make such corrections or alternations as he/she may consider appropriate and return them to the publisher. Upon expiry of this period without receiving such corrections or alteration, the advertisement shall be published in its original form. Should errors appear in the publications, and these errors are based on the details provided by the subscriber, the subscriber shall be the only person liable for such errors. 3. In conformance with Law 15/1999 of 13th December, the present form may contain personal data origination from public records; said data is included in a registered file at the agency of data protection whose title is E.C.G., S.L. (MartÍnez Cubells 6, 4˚ pta. 8, E- 46002 Valencia. Fax: +34 902 363 471). If you would like to exercise your right to correct, delete or access your data, you may contact E.C.G., S.L. Furthermore, the adhesion to the present contract entails the provision of your consent for the revealing of the collected personal data to, and the access of, third parties who participate and act directly for E.C.G., S.L. within the framework of the present contract. 4. The CD-Rom is published once a year. In the event that the publisher should have published incorrectly the details provided by the subscriber, the subscriber shall be entitled to a free insertion in a subsequent issue, after completion of existing contractual obligations. 5. Decisions relating to advertisement positioning in certain sections of the CD-Rom, Internet, or the designated categories are at the discretion of the publisher. 6. Unless agreed otherwise beforehand by the publisher, the price stated corresponds to the price of one insertion in one issue, and is payable three weeks from the date of the invoice. In the event of an extension of the contract under the terms defined in the ORDER section, the price of the insertion for each issue shall continue to be that originally stated. 7. In order to be effective, all undertakings notified verbally to the publisher's employees must be necessarily confirmed in writing. 8. The format of the insertion will be 600 x 350 pixel. 17 Term 9 was written in darker print, and provided: 9. The address of the Client Defence Service: Defensor del Cliente E.C.G. S.L. Po Box 12063, 08080 Barcelona, Spain, service@defclientecg.com, www.DefClientECG.com 18 The same writing appeared on the reverse of the second page as on the reverse side of the first page of the 2008 Form and 2009 Form but included one addition. Below the previously mentioned 9 terms in [16] and [17] were some additional words, also written in faint print. The words provided: …………………………………………………………………………………………. Cancellation notice: EUROPEAN CITY GUIDE, S.L. MartÍnez Cubells 6 - E - 46002 Valencia Contract Number Date LEGAL SIGNATURE/STAMP First name and Surname of the signatory 19 Affidavit evidence was given by a number of witnesses called by the ACCC. They were Janet Apostolopoulos (a homemaker whose husband is the proprietor of Down South Mobile Dog Wash), Anastasia Prestipino (a public servant whose husband is the proprietor of Valley Cartridges), Megan Secker (a police officer and joint proprietor of Eden Valley Estate), Charlotte Barratt (proprietor of Charlotte's Web Stamping and Papercrafts), Rodney Caruana (general manager of Caruana Kitchens), Patricia Donoghue (executive officer of ACT Sports Medicine Australia), Vicki McDonald (director of Heritage Early Childhood Centre), Greg Scollo (franchise owner of Michel's Patisserie in the Airport West Shopping Centre), Lisa Chilcote (proprietor of Lisa's Beauty 2 U). Marcus Emmanuel (director of Hostcorp Pty Ltd) gave evidence in two separate affidavits. All of the witnesses were cross-examined except Emmanuel. 20 It is convenient to summarise shortly their evidence which generally I accept. I should say immediately that in relation to each witness I thought they endeavoured to give, when being cross-examined, an honest account of events surrounding the receipt of a Form sent by ECG and what they did and what happened thereafter. A criticism was made by counsel for ECG of the form of the affidavit each witness swore. It was said, correctly, that much of the content of each affidavit took a standard form. Accordingly, each affidavit could not be taken to reflect a true and honest account by each witness of the events deposed to in the affidavit. In some senses, this criticism is justified. The terms in which the affidavits are expressed have a high measure of uniformity. Probably the high watermark of this uniformity was a brief paragraph concerning the address (in Spain) of the envelope sent to each witness (or their business or organisation or the business or organisation with which they were associated) in which they were to return the Form. It obviously would have been preferable for the ACCC lawyers to have provided each witness with an opportunity to express themselves in a way which better reflected their precise thoughts and better reflected the way in which they would ordinarily articulate those thoughts. However having heard the witnesses give evidence and their explanations, when challenged, about the way the affidavits were framed, I am left with little doubt that notwithstanding the legitimate criticism of the form of the affidavits, they express the substance of the evidence of each witness gives which, as I indicated earlier, I generally accept. I turn now to the evidence of each witness. 21 Apostolopoulos, along with her husband, are owners and proprietors of Down South Mobile Dog Wash. Down South Mobile Dog Wash is a small business based in South Australia that provides dog grooming services. The only current form of advertising maintained by the business is a listing in the local Yellow Pages. 22 On or around 26 April 2007, Apostolopoulos received by post the 2007 Form from ECG. Apostolopoulos first noticed the Australian flag as well as the title "Industry and Commerce 2007 Register of Business Information". She did not read the entirety of the Form, but assumed it had come from the Australian Government and was concerned with the current registration details of the business. She also noticed that some details on the Form in respect of the business were incorrect. She did not read any other parts of the Form, and proceeded to update the business details on the Form and send it back. Before sending it her husband executed his signature on the document, placed it in the self-addressed envelope and attached a stamp to it. Apostolopoulos was unaware that the address to which she was sending the envelope was located in Spain. In cross-examination Apostolopoulos agreed that had she read the Form more carefully she would have appreciated that it had been sent to the business by ECG offering directory services at a cost of AUD $1,200 per annum. 23 Apostolopoulos received her first invoice from ECG on 23 July 2007. This was the first time that she realised that the Form that had been sent to her was not an official form of the Australian Government, but rather, a subscription to the listing services of ECG. Apostolopoulos attempted to cancel the business's subscription to the service to no avail. A number of further invoices were received, and Apostolopoulos decided that the simplest way for her to avoid any further "harassment" from ECG would be to pay the current outstanding invoice dated January 2008 and cancel her subscription to the service for the remaining 2 years. 24 Apostolopoulos subsequently received a number of further invoices from ECG, despite her repeated attempts to cancel the business's ongoing subscription. She contacted the Legal Aid Commission, who suggested that she not pay any invoices. Apostolopoulos continued to receive reminders and invoices from ECG until November 2009, but has not paid any further money to ECG. 25 Prestipino, along with her husband, are owners and proprietors of Valley Cartridges. Valley Cartridges is located in Traralgon, Victoria and sells cartridges for printers and photocopiers. The only current form of advertising maintained by the business is an advertisement in the local Yellow Pages. 26 During January 2010 Prestipino received the 2009 Form from ECG. Prestipino, on first impression, thought that the Form had been sent by the Australian Government and related to the registration details of the business. She read only part of the Form, including the paragraph at the top right hand corner of the page, and the sentence "Please check your address carefully, for an update of the data, complete the form and return it in the enclosed envelope". Prestipino then filled out the Form, signed it and sent it back in the self-addressed envelope, believing that it had come from the Australian Government. Prestipino agreed in cross-examination that if she had read the Form from start to finish she would have been left with a different impression of the Form. 27 On or around 5 February 2010, Prestipino received the first invoice from ECG requesting payment of the AUD $1,600 subscription fee. Prestipino then attempted to cancel the subscription by email and phone but was unsuccessful in doing so. Since returning the Form she has also received a number of letters and invoices requesting payment of the subscription fee, but has not paid any money to ECG. 28 Secker is a police officer and part-owner of Eden Valley Estate with her husband. Eden Valley Estate operates as a small vineyard producing grapes for a winery in South Australia. The business does not currently engage in any form of advertising. 29 In April 2007, Secker received the 2007 Form from ECG via post. Secker first noticed the Australian Flag and title "Industry and Commerce 2007 Register of Business Information" and assumed that the Form had come from an agency of the Australian Government. As the business details recorded on the Form were incorrect, Secker completed the required fields to amend them on the Form. Her husband then executed his signature on the Form, and Secker sent it back in the self-addressed envelope. 30 From July 2007 Secker started receiving invoices and letters from ECG demanding payment of the first year's subscription fee. Secker continued to receive correspondence from ECG demanding payment of all outstanding moneys owed to them up to and including September 2009 (the amount claimed to be owed by then was over AUD $ 3,600). During this period Secker wrote to ECG on a number of occasions seeking an immediate cancellation of her subscription but was unsuccessful. Secker has not paid any money to ECG. 31 Barratt is proprietor of Charlotte's Web Stamping and Papercrafts. Charlotte's Web Stamping and Papercrafts operates as a small business selling craft supplies in South Australia. The only forms of advertising maintained by the business are a listing in the local Yellow Pages and intermittent listings in craft magazines. 32 Barratt received the 2008 Form from ECG in August 2008. She first noticed the Australia Flag and the title "2008 Register of Business Information" and assumed that the Form has come from an agency of the Australian Government. As the information contained on the Form was wrong, Barratt corrected it and sent the Form back in the pre-addressed envelope. In cross-examination Barratt agreed that if she had read the balance of the Form it would have been revealed to her that the Form had not been sent by the Australian Government in order for her to update her business registration details but had been sent by ECG offering paid business directory listing services. 33 Barratt received the first invoice for payment from ECG in October 2008 and continued to receive invoices and letters of demand until April 2010. Barratt was also telephoned by a representative of ECG demanding payment of the outstanding subscription fees on 29 April 2010. Barratt has not attempted to contact ECG to cancel the business's subscription or paid any money to them. 34 Caruana is the general manager of Caruana Kitchens. Caruana Kitchens is based in Sydney and provides cabinet making and joinery services. The only form of advertising maintained by the business is a listing in the local Yellow Pages. 35 During December 2008 Caruana received the 2008 Form from ECG. Caruana first noticed the Australian Flag and the title "Industry and Commerce 2008 Register of Business Information". Caruana assumed that the Form had come from an agency of the Australian Government and was related to the registration details of the business. He checked the details to make sure they were correct, signed the document and gave the Form to his secretary to send back in the pre-addressed envelope. In cross-examination Caruana agreed if he had read the entirety of the Form when he received it he would not have believed that the Form had been sent by the Australian Government. 36 Caruana received a reminder for payment in March 2009 from ECG. Caruana wrote to ECG in an attempt to cancel the subscription on 3 March 2009 but was unsuccessful. Caruana subsequently wrote another letter to ECG in attempt to cancel his subscription which was also unsuccessful. He continued to receive invoices and demands for payment from ECG until March 2010. Caruana Kitchens has not paid any money to ECG. 37 Donohue is the executive officer of the ACT branch of Sports Medicine Australia ("ACT Sports Medicine Australia"). ACT Sports Medicine Australia is a not for profit organisation that provides information, advice and commentary to the public on a range of issues relating to sport and health. Promotion of ACT Sports Medicine Australia is not achieved through advertising as courses and services are offered to the public through sporting organisations and the sporting community in general. ACT Sports Medicine Australia maintains a listing in the local Yellow Pages as well as its own website. 38 During November 2009 Donohue received the 2009 Form from ECG. Donohue first noticed the Australian Flag and the title "Industry and Commerce 2009 Register of Business Information" and assumed that the Form had come from an agency of the Australian Government. Donohue read the whole of the front page of the Form, quickly glanced at the back of the Form however did not read it as she believed that the back of the Form only related to the CD-Rom to which she did not intend to subscribe to and did not want. After reading the Form she updated the organisation's details as they were incomplete then sent the Form back to ECG in the pre-addressed envelope. Her belief was that she was only updating the organisation's registration details to send back to an agency of the Australian Government and not subscribing to the CD-Rom. 39 Donohue received the first letter and invoice requesting payment of the subscription fee of AUD $1,600 in February 2010. Donohue responded by emailing ECG on 23 February 2010 requesting an immediate cancellation of the subscription. ECG responded by letter advising Donohue that the cancellation period for the subscription had already passed, and the subscription fee of AUD $ 1,600 was still outstanding. ECG sent a further reminder to Donohue on 16 March 2010. Donohue contacted the ACCC in late March 2010 and subsequently emailed ECG stating that the organisation would not be paying the invoiced amount. ACT Sports Medicine Australia has not paid any money to ECG. 40 McDonald is the director of the Heritage Early Childhood Centre (the "Centre"). The Centre is a community based, not for profit childcare centre in the ACT. The Centre does not engage in any form of advertising. The Centre maintains a webpage on the Australian National University Website. 41 During June 2006 McDonald received the 2006 Form from ECG. She first noticed the Australian Flag and the title "Industry and Commerce 2006 Register of Business Information". McDonald assumed that the Form had been sent to her by an agency of the Australian Government and was related to the contact and registration details of the Centre. McDonald then read part of the paragraph at the top right hand corner of the Form, as well as the sentences in bold directly below. Her impression at that stage was that the Form had been sent by an agency of the Australian Government and was requesting her to update the registration of the Centre. As McDonald had only commenced working in her role as director in the previous month, she filled in the required fields and sent the Form back in an envelope that she had written the address on herself. She was not aware that the address to which she was sending the envelope was in Spain and placed a 50 cent stamp on it only. 42 During November 2006, McDonald received the first invoice requesting payment of the Centre's AUD $1,200 subscription fee from ECG. At this point it became clear to McDonald that the Form she had completed and sent back had not emanated from an agency of the Australian Government, but was an order form for a subscription to the listing services offered by ECG, namely the ECG Website and CD-Rom. ECG continued to send demands, invoices and letters for the subscription fees until December 2008 at which time the amount owed was claimed to be over AUD $3,600. During this period McDonald wrote a number of emails and letters to ECG requesting cancellation of the subscription as she believed she had been misled by the Form. The Centre has not paid any money to ECG. 43 Scollo is the owner and sole director of ASJ Kids Pty Ltd. ASJ Kids Pty Ltd owns a Michel's Patisserie franchise (the "Franchise") located at the Airport West Shopping Centre in Victoria where Scollo manages the operation of the business. The Franchise supplies baked goods and beverages. All advertising for the Franchise is undertaken by the Franchisor, Retail Food Group Pty Ltd. Scollo does not undertake any advertising for the Franchise himself as that would be in breach of the franchise agreement with Retail Food Group Pty Ltd. 44 During August 2008 Scollo received the 2008 Form by post from ECG. Scollo saw the title "Industry and Commerce 2008 Register of Business Information" and assumed that as the Franchise had a registered business name the Form had come from an agency of the Australian Government. As Scollo believed that the Form had been sent by the Australian Government in connection with the registration details of the Franchise he amended the incorrect or incomplete fields and sent the Form back in the pre-addressed envelope. 45 During October 2008 Scollo received a letter and invoice from ECG advising him that the Franchise had been successfully listed on the ECG Website and CD-Rom and payment of the first year's subscription fee of AUD $1,300 was required. This was when Scollo first became aware that the Form had not been sent by the Australian Government for the purpose of updating the Franchise's details, but was a subscription for the listing services of ECG. Scollo sent an email to ECG on 4 November 2008 requesting an immediate cancellation of the listing as he had believed the Form had come from the Australian Government and not ECG and was unable to engage in advertising for the Franchise under its franchise agreement. Scollo continued to receive invoices, demands and letters requesting payment from ECG until May 2009. Scollo has not paid any money to ECG. 46 Chilcote is the proprietor of Lisa's Beauty 2 U. The business supplies beauty treatments to customers in the local Gippsland area of Victoria. The business maintains a listing in the local Yellow Pages and occasionally places advertisements in the local community newspaper and local newsletter. The business also has a listing on a local website for businesses in the Gippsland area which is maintained at a cost of AUD $80 per year. 47 During April 2007 Chilcote received the 2007 Form by post. She first noticed the Australian Flag and title "Industry and Commerce 2007 Register of Business Information" on the Form. Chilcote also read the paragraph commencing with the words "Dear Sirs" and the sentences immediately below commencing with the words "Please check your address". She assumed that the Form had been sent by an agency of the Australian Government with purpose of maintaining a free public record of business information and completed the missing information then sent it back in the pre-addressed envelope. 48 During June 2007, Chilcote received a letter from ECG advising that Lisa's Beauty 2 U had been successfully listed on the ECG Website, a CD-Rom and an invoice for AUD $1,200. At this point Chilcote realised that the Form she had completed had not been sent by the Australian Government for the purpose of updating her business's details but was actually a form offering listing services at a cost that had been sent by ECG. On 13 August 2007 Chilcote sent a letter to ECG requesting an immediate cancellation of the subscription. ECG subsequently responded refusing to cancel the subscription and requesting that payment be made. Chilcote continued to receive letters, invoices and demands requesting payment until February 2010 as well as multiple copies of the ECG CD-Rom containing on it the business's listing. Chilcote returned some of the letters and CD-Roms to ECG and kept some. Chilcote has not paid any money to ECG. 49 Some contentious evidence was led by the ACCC about the ECG Website from a witness, Mr Emanuel. I admitted some of that evidence over the forcefully advanced objection of ECG's counsel. However it is, I think, unnecessary to summarise this evidence or indeed to say much about the contents of the ECG Website itself. That is because the ACCC's application for declaratory relief (no injunctive relief was sought) concerning the ECG Website must fail because it proceeds on a factual premise which is entirely unsupported by any direct evidence nor is there evidence which would, as a matter of inference, make good the premise. I will briefly expand upon this point later in these reasons.

The statutory provisions and related authorities 50 The relevant provisions of the Act are well-known. However as the respondent is based in Spain, it is probably desirable to set them out. The first is s 52 which provided: Misleading or deceptive conduct (1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. (2) Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of subsection (1). Note: For rules relating to representations as to the country of origin of goods, see Division 1AA (sections 65AA to 65AN). It is unnecessary to set out the provisions, but a "corporation" includes a foreign corporation and comprehends ECG. 51 The second relevant provision is s 53 which provided: False or misleading representations A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services: (a) falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; (aa) falsely represent that services are of a particular standard, quality, value or grade; (b) falsely represent that goods are new; (bb) falsely represent that a particular person has agreed to acquire goods or services; (c) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have; (d) represent that the corporation has a sponsorship, approval or affiliation it does not have; (e) make a false or misleading representation with respect to the price of goods or services; (ea) make a false or misleading representation concerning the availability of facilities for the repair of goods or of spare parts for goods; (eb) make a false or misleading representation concerning the place of origin of goods; (f) make a false or misleading representation concerning the need for any goods or services; or (g) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy. Note: For rules relating to representations as to the country of origin of goods, see Division 1AA (sections 65AA to 65AN). 52 Although ss 52 and 53 were relevantly concerned with "misleading and deceptive conduct" and "false or misleading representations" respectively, the principles to be applied for each are fundamentally the same. As Gordon J observed in Australian Competition and Consumer Commission v Dukemaster [2009] FCA 682 at [14]: In relation to the first element, s 53(e) requires the representation to be "false or misleading" as opposed to "misleading or deceptive" (in s 52). I was not taken to, and I have not found, any authority which attributes a meaningful difference to this dichotomy for the purposes of the [the Act]. (For a discussion of the phrase "false and misleading" under a different Act, see Construction, Forestry, Mining and Energy Union v Hadkiss (2007) 160 FCR 151). Indeed, the vast majority of cases that discuss an alleged breach of s 53(e) couple it with a breach of s 52 and deal with the "false or misleading" and "misleading or deceptive" aspect of the conduct mutatis mutandis: see Foxtel Management Pty Ltd (2005) 214 ALR 554 at [94]; ACCC v Target Australia Pty Ltd (2001) ATPR 41-840; ACCC v Harbin Pty Ltd [2008] FCA 1792; ACCC v Prouds Jewellers Pty Ltd [2008] FCAFC 199 at [42]. 53 There are a number of well-known authorities that deal with the relevant principles to be applied in proceedings of the present type: Campomar Sociedad, Limitada and Anor v Nike International Ltd (2000) 202 CLR 45, Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82, and Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177. 54 It is necessary for the ACCC to prove that their contentions about what the ECG Forms and ECG Website are what would have been conveyed to the relevant audience or section of the public. Campomar is the leading authority on this subject, and the plurality of the High Court said at [103]: Where the persons in question are not identified individuals to whom a particular misrepresentation has been made or from whom a relevant fact, circumstance or proposal was withheld, but are members of a class to which the conduct in question was directed in a general sense, it is necessary to isolate by some criterion a representative member of that class. The inquiry thus is to be made with respect to this hypothetical individual why the misconception complained has arisen or is likely to arise if no injunctive relief be granted. In formulating this inquiry, the courts have had regard to what appears to be the outer limits of the purpose and scope of the statutory norm of conduct fixed by s52. Thus, in Puxu, Gibbs CJ observed that conduct not intended to mislead or deceive and which was engaged in "honestly and reasonably" might nevertheless contravene s52. Having regard to these "heavy burdens" which the statute created, his Honour concluded that, where the effect of conduct on a class of persons, such as consumers, was in issue, the section must be "regarded as contemplating the effect of the conduct on reasonable members of the class". 55 In the present case the relevant section of the public can be viewed as the operators or managers of businesses or organisations to whom the Form was sent or those within the recipient business or organisation whose responsibility it was to deal with and respond to such forms. However within this broadly described class would be comparatively unsophisticated individuals who would be typically running or operating a small business or organisation as the sole or principal operator or someone (perhaps a spouse) assisting that person. In assessing the actual or likely impact of the Form on a recipient and how it might be understood and dealt with, the law is not unduly demanding. As the Full Court recently observed in Granitigard Pty Ltd v Termicide Pest Control Pty Ltd [2011] FCAFC 81 per Reeves J ( Kenny and Lander JJ agreeing) at [42]: In determining the meaning or effect those words [in this case the Form] had for the specified class, one must have regard to its effect on reasonable members of that class, which "may include the inexperienced as well as the experienced, and the gullible as well as the astute": Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 ("Puxu") at 199 and Campomar Sociedad, Limitada v Nike International Ltd (1999) 202 CLR 45; [2000] HCA 12 at [103]. I now turn to consider the issues raised in the proceedings.

Consideration 56 It is convenient, at the outset, to deal with a submission ECG made that the ACCC had acted with a "lack of candour" in the proceedings. Candour, it was submitted, can be expected from a model litigant and enforcement agency. I understood these submissions to be directed, at least in part, to the way in which any discretion to grant relief might be exercised. I am prepared to assume this is so though I doubt very much that even if the ACCC's conduct can be criticised in the way suggested by ECG (a criticism I reject) it should influence the exercise of any discretion to grant relief in litigation which is, in substance, brought to protect the interests of consumers. 57 The focus of ECG's criticism concerned events during an interlocutory contest about the admissibility of certain documents ("the complaint documents") which, at the time, the ACCC was proposing to tender as part of its evidentiary case. The gravamen of the criticism was that the ACCC held back documents it should otherwise have produced and which ECG contended were highly relevant to its case in resisting the ACCC's application to tender the complaint documents as business records pursuant to s 69 of the Evidence Act 1995 (Cth) ("Evidence Act"). Appendix B of the Legal Services Directions 2005 (Cth) explains the obligation on the Commonwealth and its Agencies to behave as model litigants in the conduct of litigation. The authorities on this obligation are well settled. See, for example, Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 133 at 342, Kenny v South Australia (1987) 46 SASR 268 at 273 and Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155. ECG was invited by the court to either not press these submissions further or put further submissions to demonstrate its criticisms were soundly based. It chose the latter. 58 Section 69 of the Evidence Act relevantly provides: Exception: business records (1) This section applies to a document that: (a) either: (i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or (ii) at any time was or formed part of such a record; and (b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business. (2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made: (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or (b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. (3) Subsection (2) does not apply if the representation: (a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or (b) was made in connection with an investigation relating or leading to a criminal proceeding. (4) If: (a) the occurrence of an event of a particular kind is in question; and (b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind; the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event. (5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact). Note 1: Sections 48, 49, 50, 146, 147 and subsection 150(1) are relevant to the mode of proof, and authentication, of business records. Note 2: Section 182 gives this section a wider application in relation to Commonwealth records. 59 Somewhat simplified, this section enables business records to be tendered to prove the truth of their contents with the proviso, relevantly, that the right to tender such documents does not arise if the documents were created with litigation in contemplation. In this discussion it is unnecessary to essay with any measure of exactitude, the operation of the section or proviso. As part of this interlocutory contest, the ACCC filed an affidavit of Michael Kiley ("First Kiley Affidavit") sworn 6 May 2010 that exhibited, amongst other things, a number of documents sought to be tendered pursuant to s 69 of the Evidence Act. The documents sought to be tendered relevantly were said to be a computer record of complaints received by the ACCC relating to the activities of ECG. Exhibit MK-4 and exhibit MK-6 to the First Kiley Affidavit contained chronological lists of complaints (and what, in summary, had been said by each complainant) received by the ACCC telephone information and complaint service ("Infocentre") said to relate to ECG. It should be noted that the ACCC ultimately did not press the tender of these documents. My understanding is that these two exhibits are, in effect, extracts of the content of computer records which are capable of reproduction or publication, in one version, as "screen shots" which would reveal not only the extracts but surrounding and related information as well. That is, other information associated with the information recorded as the summary of the complaint. 60 ECG contended that a matter highly relevant to the purported tender of those documents was whether the Infocentre staff (ACCC employees who, as one of their tasks, receive calls to that body from consumers) who had recorded the complaints had done so in isolation of any enforcement function of the ACCC, and if they had not, whether this would affect the proposed tender of the documents pursuant to s 69(3) of the Evidence Act. Basically the issue would have been whether the recording of the complaints by the Infocentre staff was in aid of an investigation by another arm of the ACCC and whether, at the time they were recorded, litigation was in contemplation or the records were being created for the purposes of litigation. 61 Central to the criticism of the conduct of ACCC by ECG was the failure, so it was said, of the former to produce to the latter certain critical documents (or other documents which would have referred to those critical documents). The critical documents were these. On 17 October 2007, David Kinsella (ACCC enforcement officer) sent an email ("Kinsella Email") to David Snowden (ACCC employee) and Leo Exarhos (ACCC employee) in the following terms: David and Leo, As discussed with myself and Ian Searles earlier today regarding Industry and Commerce 2007 - Register of Business Information. Background Industry and Commerce is a Spanish based company that writes (usually by mail but it appears to be sending emails now) to businesses and asks them to send their current business details. After returning the business details, the company then receives an invoice for $1200 and if the business doesn't pay the invoice they usually receive letters from Industry and Commerce threatening legal action. Industry and Commerce is currently listed on SCAMWatch and other websites. These websites advise businesses not to return their business details to Industry and Commerce. We are currently looking at what action ACCC can take in relation to this matter. To assist with our investigation it would be useful if any future callers could be asked to provide the ACCC with any emails they receive or letters (including the envelope) from Industry and Commerce. If you require any further information or have any queries regarding this matter please contact me on extn 1054. Thank you David 62 Exarhos then forwarded the email ("Kinsella Email Chain") to Infocentre staff. The email contained the Kinsella email as well as the following message: For your information - emails or letters (including the envelopes) in relation to Industry and Commerce can be sent to: David Kinsella ACCC GPO Box 3131 Canberra ACT 2601 63 The Kinsella Email Chain was produced to ECG on 22 December 2010. ECG contended that the non-production of the Kinsella Email Chain until then meant that it had been significantly prejudiced in its ability to conduct a series of interlocutory hearings that had taken place earlier. Some of the background founding this argument is this. 64 ECG filed and served a notice to produce on the ACCC on 9 June 2010 which sought the production of, amongst other things: 1. Any Document which records the names and addresses of each of the Complainants 2. Any Documents which record what was said by the Complainants when making their complaint. … ECG submitted that paragraphs 1 and 2 captured the full screen shots of exhibits MK-4 and MK-6 of the First Kiley Affidavit. However, the screen shots were not amongst documents produced in response to the notice by the ACCC, and ECG contended that this adversely affected their ability to conduct interlocutory hearings that occurred on 4 and 13 August because the full screen shots contained references to the Kinsella Email Chain which had not yet been produced to ECG. 65 On 25 June 2010 ECG issued a notice to produce to the ACCC seeking production of documents relating to evidence given in the affidavit of Bruce Cooper (ACCC general manager of information research and analysis) about the role of the Infocentre and its relationship with the enforcement arm of the ACCC. Paragraph 20 of Cooper's affidavit provided: While Records kept by the Infocentre might ultimately be used to inform Commission staff of conduct in relation to which a decision might be taken to commence a formal investigation or to inform staff of conduct relating to an ongoing investigation, Infocentre records are not kept or obtained: 20.1. for the purpose of conducting; 20.2. in contemplation of; or 20.3. in connection with, enforcement activity being undertaken by the Commission. Paragraph 3(g) of ECG's 25 June 2010 notice to produce sought production of "any document which comprises, evidences or records the following in respect of the respondent: a 'decision' of the type referred to in paragraph 20 of the Cooper affidavit". ECG submitted that the Kinsella Email Chain was covered by paragraph 3(g). 66 A significant amount of both oral and written evidence was given by the ACCC about the operation of both the Infocentre and the enforcement arm, and the relationship between the two. ECG submitted that this evidence was incorrect and lacking in candour given what ECG says was the true relationship between the Infocentre and enforcement arm. ECG submitted that the Infocentre was playing a role in respect of the enforcement arm of the ACCC's investigation into the activities of ECG. 67 After the hearings on 4 and 13 August 2010 the ACCC produced to ECG two lever arch folders of documents containing approximately 200 full screen shots of complaints recorded by the Infocentre. The full screen shots were taken from a selection of the records in exhibit MJK-6 to the First Kiley Affidavit and a number contained records of Infocentre staff advising callers to send in any documents relating to their call to Kinsella. 68 On 1 October 2010 the ACCC indicated it no longer sought to tender the exhibits to the First Kiley Affidavit which ECG contended again is significant in relation to its lack of candour argument. ECG contended that the non-disclosure of relevant materials, despite the fact that there was no general order for discovery, caused it significant prejudice in its ability to conduct the interlocutory hearings. It contended that any doubt as to whether notices to produce or correspondence called for such documents out to have been resolved with the ACCC's obligation to behave as a model litigant in mind. 69 ECG also submitted that there was a link between the non-disclosure of the Kinsella Email Chain and the eventual withdrawal of the tender of the business records exhibited to the First Kiley Affidavit. The gravamen of ECG's contention was that the ACCC had deliberately withheld the production of the Kinsella Email Chain to obtain some advantage in the business records argument and that it withdrew its application to tender the business records once it had been forced to disclose the existence of the Kinsella Email Chain. 70 The ACCC contended that what in fact occurred was very different. The screen shots produced on 20 August 2010 were produced to minimise any unnecessary debate regarding the business records after the hearing on 4 and 13 August 2010 and the intention was that the parties between them could reach a resolution about their tender. The ACCC then indicated to the court that it was anxious to preserve the hearing dates and may not press the tender of exhibit MJK-6 or the screen shots if that had a possibility of affecting them. After the hearing date of 1 October 2010 was set down for the business records argument the ACCC indicated it would no longer press MJK-6, however ECG still opposed the tender of the screen shots. On 8 October 2010 the ACCC informed ECG it would no longer seek to tender the screen shots to minimise continual unnecessary debate. The Kinsella Email Chain was then produced in response to a notice to produce from ECG dated 15 December 2010 which related to a stay application it then proposed to make that relied on, amongst other things, the "lack of candour allegation". 71 For my part I not satisfied that ECG has made good this serious allegation that the ACCC had, in substance, behaved improperly by not producing the Kinsella Email Chain or documents pointing to its existence, in withdrawing the tender of the complaint documents or not pursuing the tender of the full screen shots. It is by no means clear to me that the Kinsella Email Chain was of any real significance had the issue of whether the complaint documents were admissible been fully litigated. The Chain would not have contributed at least in any material way, in my opinion, to proof of whether litigation was in contemplation or the proof of whether the recording of the complaint was for the purposes of litigation. It was no more than an innocuous and understandable request to have complainants send other material to David Kinsella. The recording of the complaint (being the recording of the representation for the purposes of s 69) was a distinct action not dependent on the request in the Chain. The request did not point in any particularly decisive way to whether a stage had been reached where litigation was in contemplation. Moreover I doubt very much that the various documents ECG says should have been produced pursuant to the notices to produce were comprehended by the notices. In addition the explanation given by the ACCC for not pursuing the tender appears to me, in context, to be entirely plausible and, put slightly differently, the suggestion that it was done as part of or consequential upon a deliberate attempt to frustrate ECG's prosecution of its resistance to the tender of the complaint documents I find entirely unpersuasive. I am not satisfied the ACCC acted with any "lack of candour". 72 I now address the real issues in the case. I have already described the various versions of the Forms in some detail. If an individual read, from beginning to end, any version of the Form with a measure of care it would most likely be apparent that notwithstanding some indications to the contrary, the Form, if signed, constituted an agreement. At the very least the individual would be alerted to the possibility that signing the Form involved some type of commercial transaction entailing payment. The business or organisation to whom the Form was sent would be agreeing to pay an amount for particulars of the business to be included in a vaguely described compilation or digest of businesses and organisations to be published by ECG in a CD-Rom and on the Internet. The business would also be sent, as part of the agreement, a copy of the CD-Rom. 73 However the critical question appears to me to be whether the Form was cast in terms and formatted in a way which could well have lead an individual running (or otherwise part of the operation of) the business or organisation to whom the Form was sent, and particularly unsophisticated business operators mostly typified by the witnesses called by the ACCC, reasonably to believe the Form constituted an enquiry by the Australian Government or an agency of the Australian Government to update a register maintained for a public purpose and thus give much of the contents of the Form limited or no attention beyond completing those parts of the Form necessary to update or correct the Register apparently maintained for a public purpose and signing and returning it. In my view fairly clearly the answer is yes. 74 One starting point in explaining this conclusion is to draw attention to the perfunctory attempt by the drafter of the Form to inform the recipient that "[t]his company [presumably ECG] is not linked to the institutions or agencies of the Australian Government". I infer that those who drafted the Form included this statement because they were alive to the real possibility if not likelihood that in the absence of this statement, many recipients of the Form might very well believe there was such a link. I say perfunctory because the placement of the sentence containing the statement (running up the left-hand margin of the Form and at right angles to all the other text) together with the almost unreadable size of the type rendered it unlikely that anyone other than the most astute reader of the Form would notice and then read this sentence. It is not a large step to infer, and I do, that the sentence was in this form and location not because it was a genuine attempt to disclaim the linkage referred to but rather because it constituted a feature of the Form to be pointed to in the event that a complaint was made by an individual or indeed proceedings commenced by an individual or regulatory agency alleging that the individual had been misled or consumer protection laws or regulations had been violated because the Form otherwise appeared to be from such an institution or agency. 75 The Australian flag, prominent both by its placement at the top of the Form and its colouring, together with the immediate context would be likely to convey in the eyes of many recipients of the Form, that it had emanated from the Australian Government or an agency of that Government. The context includes the clearly obvious words in capitals "INDUSTRY AND COMMERCE" which are words evocative of a governmental agency for department as well as the word "Register" which is typically used (though I accept also many times not) in relation to a repository of information maintained by government. Certainly the word "Register" is not typically used to describe a business directory maintained and disseminated by a commercial organisation for profit. In addition, any preliminary belief that the Form was a request for information from the Australian Government for a public purpose would be fortified by the nature of the task the Form asks the recipient to undertake. That is because it contained a request to update or correct information portrayed as currently existing on the "Register" in circumstances where particulars of the business were likely to be in some repository of information maintained by government but either were not, or were not to the knowledge of the recipient, to be found in a commercially maintained database. 76 If, as I have endeavoured to explain, the Form was cast in terms and formatted in a way which would (or was likely to) lead a material number recipients reasonably to believe the Form constituted an enquiry by the Australian Government or an agency then I do not think it unreasonable for such a recipient to deal expeditiously with the Form by making such corrections and adding information as was necessary and signing and returning it without reading the Form from beginning to end. If the recipient believed the Form emanated from government then the recipient could reasonably assume that much of the detail on the Form did not contain "surprises" such as the potential creation of a contractual liability to pay a significant sum to a Spanish company to be included in a business directory which, at the end of the day, may be of dubious worth. 77 In my opinion, the Form is misleading and deceptive in the first two ways pleaded by ACCC as summarised earlier in these reasons. In sending out the Form, ECG engaged in conduct proscribed by s 52. I should, at this stage, mention how these misleading aspects of the Forms (which rendered unlawful the conduct of ECG in despatching them to recipients in Australia under Australian law) were pleaded. It has a bearing on the terms on which relief might be granted. It was alleged, and I accept, that these Forms represented that "the forms had been sent to Australian Businesses by an agency related to the Australian Government", "the forms contained information concerning Australian Businesses which had already been published on a register maintained by an agency associated with the Australian Government (the Register)" and "the forms were concerned with ensuring that the details of Australian Businesses had been accurately recorded on the Register". Of some significance is that it is not alleged that the Forms were misleading because they represented that they contained information already on a register or in a business directory maintained or published by ECG whereas in fact it was not on such a register or in such a directory. While this may well be so, it was not the case advanced in the pleadings. 78 The third aspect of the Form which was said to be misleading or deceptive is the suggestion or statement that no charges would be made for signing and returning the Form whereas, in fact, in doing so a subscription fee became payable. I apprehend this is very much a subsidiary aspect of the ACCC's case. The submission focuses, in part, on the sentence "The updating is cost free" which appears only in the 2006 Form and the 2007 Form. Demonstrably, this is untrue if the request in the preceding sentence to "complete the form" is taken to include signing it. I accept that the following sentence "Only sign if you want to place an insertion" might be seen by some readers (who got this far in reading the Form) as drawing a distinction between completing the Form on the one hand and signing the Form on the other. Conceivably, though it is extremely unlikely, such a reader might complete the Form by providing the information sought and return it without signing it. However I also consider it is probable that this distinction would not be drawn by many readers who did not read with great care the Form to this point or thereafter including those who did not read the Form in its entirety. If so they would be led to believe that in completing the Form in the way the Form invites including signing it would be "cost free". But it would not be. Probably this criticism of the Form is most telling in relation to recipients who did not believe the Form came from an agency of the Australian Government. The inclusion of the sentence "The updating is cost free" is misleading and deceptive and in sending out the Form with those words ECG engaged in conduct proscribed by s 52. 79 The ACCC also argued that the 2008 Form and the 2009 Form contain a similar intimation (that no charges would be made for signing and returning the Form) because of the apparent connection with the Australian Government, the official directive language of the Form (being inconsistent with an invitation to purchase a product or service) and, in effect, the disguising of the fact by the structure and general content of the Form that a fee would be paid and providing no mechanism to indicate how it should be paid. The difficulty with this submission, as I see it, is that the pleaded allegation is that the Form represented "ECG would not charge a cost in confirming the accuracy of the details recorded on the Register" whereas the submission just summarised proceeds on the basis, at least in substantial part, that the recipient of the Form was a member of a class of recipients who would have understood it came from an agency of the Australian Government. If so, the reader would be forming no view or belief when looking at the Form about what ECG would or would not do. I do not think that the pleaded allegation is made out in relation to the 2008 Form and the 2009 Form. 80 The ACCC also contended that ECG contravened paragraphs (aa),(c),(d), and (e) of s 53. These paragraphs concern, respectively, the standard, quality, value or grade of services; the sponsorship, approval, performance characteristics, accessories, uses or benefits of services; the sponsorship, approval or affiliation of the corporation; and the price of services The way these allegations are pleaded, the characteristic or characteristics of any representations in the Form which rendered them false or misleading for the purposes of these paragraphs was the representations that the Forms came from an agency of the Australian Government containing information in a register maintained by that agency which needed to be accurately recorded. In truth, what the service actually (or perhaps only ostensibly) offered was the inclusion, for a fee, in a business directory maintained for commercial services by ECG and published on the internet and periodically in a CD-Rom. 81 It seems to me there is a disconnect between the false or misleading characteristics of the Form relied upon by the ACCC and the circumstances in which each of these paragraphs might be engaged. This can be illustrated by reference to paragraph (aa). If the recipient of a Form might have been led to believe that it came from an agency of the Australian Government it would be saying nothing to the recipient about the standard, quality, value or grade of the service actually proposed to be provided. The recipient would not be deceived or misled about the standard, quality, value or grade of that service but would simply be oblivious to the nature of the service being provided. Similarly, in relation to paragraph (c) the recipient would not be misled or deceived into believing the service proposed to be provided had any of the attributes referred to earlier (sponsorship, approval, performance characteristics, accessories, uses or benefits). The recipient would not have appreciated any such service was being proposed at all. Also in relation to paragraph (d), the recipient would not be misled about the sponsorship, approval or affiliation of ECG. The recipient would not understand or appreciate that ECG was involved let alone be misled into believing ECG had the sponsorship by, approval of or affiliation with an agency of the Australian Government. Conceivably, in relation to paragraph (e), a Form, understood by a recipient to have come from an agency of the Australian Government, may arguably have be misled about the price of the service. Checking and if necessary correcting details of a register maintained for a public purpose by an agency of the Australian Government would be likely to have been understood as a task or process which would be undertaken at no charge. But again that was not the service offered by the Form. For my part, I cannot discern any contravention of s 53 as the case has been pleaded. 82 In relation to the ECG Website, as I noted earlier in these reasons, the ACCC application for declaratory relief proceeds on a factual premise which is entirely unsupported by any direct evidence nor is there evidence which would, as a matter of inference, make good the premise. It was to the effect that the alleged vices with the ECG Website (summarised at the outset of these reasons) needed to be revealed in a formal order of the Court declaring their existence. The need arose because, it was said, proprietors of businesses deciding whether or not to pay the sum demanded in an invoice sent by ECG (presumably because they had completed, signed and returned a Form) might access the ECG Website, see the statements about its virtues and be influenced to pay the invoiced amount. Were the true position known to such a person about the gross deficiencies in the ECG Website, so the argument ran, they would not make the payment sought. 83 The difficulty I have with this submission is that there is no evidence of this having occurred or, from the evidence presented, is it something I could infer has happened or is likely to happen. Either an individual has completed, signed and returned the Form knowing or appreciating they were incurring an obligation to make payment or they did not. The latter class would include those who thought the Form was from an agency of the Australian Government and completed, signed and returned it on that basis. I very much doubt that individuals in this first group would assess whether they should pay the money they knew they were liable to pay having regard to what the ECG Website said about itself or, putting it slightly differently, there is no evidence supporting an inference this has happened or might happen. Similarly I very much doubt that individuals in the second group would assess whether they should pay the money demanded in circumstances where they had not realised completing, signing and returning the Form would result in the demand and again, putting it slightly differently, there is no evidence supporting an inference this has happened or might happen. For these reasons the application of the ACCC for declaratory relief in relation to the ECG Website must fail. I should add that in reaching this conclusion I should not be taken to be rejecting the submissions of the ACCC about the quality of the ECG Website and that statements on it are misleading. The submissions were not devoid of substance but it is unnecessary to address them. 84 I now consider what relief should be granted, if any. I say "if any" because ECG made a submission that no orders should be made (and in particular no injunctive relief granted) because it would be apparent from the reasons the way in which and the extent to which ECG engaged in contravening conduct and the Act itself prevented a repetition of the conduct. Reference was made to the judgement of the Full Court (of which I was a member) in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513. I do not propose to rehearse the reasons for making declarations and granting injunctions. They have been stated many times and most recently by Gilmour J in Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695 at paragraphs [47] and following as to declarations and, as to injunctions, in paragraphs [54] and following. I respectfully adopt what his Honour said. 85 In order to discuss, in any comprehensible way, the orders I propose to make (and not make) it is desirable to set out the orders as finally sought (though 1.1.8 was not pressed as the underlying allegation was not itself pursued) though I exclude the orders proposed in relation to ECG Website (resulting in the renumbering of the orders): THE COURT DECLARES THAT:

1. Between approximately December 2006 and 24 July 2009, European City Guide ("ECG"), while engaged in trade or commerce within Australia or between Australian and a place or places outside Australia, contravened s 52 of the Trade Practices Act 1974 (Cth) ("The Act") by causing forms to be published and distributed to Australian businesses ("ECG Forms") which: 1.1 represented that: 1.1.1 the forms had been sent to Australian businesses by an agency related to the Australian Government; 1.1.2 the forms contained information concerning Australian businesses which had already been published on a register maintained by an agency associated with the Australian Government (the "Register"); 1.1.3 the forms were concerned with ensuring that details of Australian businesses had been accurately recorded on the Register; and 1.1.4 ECG would not charge a cost in relation to the confirmation by Australian businesses of the accuracy of the details recorded on the Register; When in fact: 1.1.5 the forms were sent to Australian Businesses by ECG; 1.1.6 ECG is not an agency in any way affiliated with or related to the Australian Government; 1.1.7 the forms did not contain information concerning Australian businesses which had already been published on a register maintained by an agency associated with the Australian Government; 1.1.8 the forms contained deliberate mistakes or omissions of detail in order to prompt Australia businesses to respond to the notices; 1.1.9 in signing and returning the forms to ECG to confirm the accuracy of information contained in the forms, Australian businesses were charged by ECG by way of subscription an amount of between AUD $1,200 and AUD $1,600 annually with the minimum initial subscription term being 3 years. 2. ECG, while engaged in trade or commerce within Australia or between Australia and a place or places outside Australia, contravened s 53(a) of the Act in circumstances where the ECG Forms made false representations with respect to the particular standard, quality, value or grade of the Online Directory Service being promoted: 2.1 by causing the ECG Forms to published and distributed in connection with the promotion by any means of the supply of Online Directory Services; and 2.2 by reason of the matters set out in paragraphs 1.1.1, 1.1.2, 1.1.5, 1.1.6 and 1.1.7 of these orders. 3. ECG, while engaged in trade or commerce within Australia or between Australia and a place or places outside Australia, contravened s 53(c) of the Act in circumstances where ECG Forms made representations that the Online Directory Services had a sponsorship, approval or performance characteristics that it did not have: 3.1 by causing the ECG Forms to be published and distributed in connection with the promotion by any means of the supply of the Online Directory Service; and 3.2 by reason of the matters set out in paragraphs 1.1.1, 1.1.2, 1.1.5, 1.1.6 and 1.1.7 of these orders. 4. ECG, while engaged in trade or commerce within Australia or between Australia and a place or places outside Australia, contravened s 53(d) of the Act in circumstances where ECG Forms made representations represented ECG had a sponsorship, approval or affiliation that it did not have: 4.1 by causing the ECG Forms to be published and distributed in connection with the promotion by any means of the supply of the Online Directory Service; and 4.2 by reason of the matters set out in paragraphs 1.1.1, 1.1.2, 1.1.5, 1.1.6 and 1.1.7 of these orders. 5. ECG, while engaged in trade or commerce within Australia or between Australia and a place or places outside Australia, contravened s 53(e) of the Act in circumstances where the ECG Forms made false or misleading representations with respect to the price of goods or services: 5.1 by causing the ECG Forms to be published and distributed in connection with the promotion by any means of the supply of the Online Directory Service; and 5.2 by reason of the matters set out in paragraphs 1.1.4 and 1.1.9 of these Orders. THE COURT ORDERS THAT: 6. ECG be restrained, whether by itself, its servants, agents or otherwise from the date of these orders, from representing in any way to any individual, partnership, company or institution that conducts some form of business in Australia that: 6.1 the business has a pre-existing relationship with ECG, if the business does not; 6.2 the business has previously made a request, or given consent or authority, for its details to be included in the Register of Business Information, the Industry and Commerce Directory, or any other register, directory or publication, whether in hard copy, on CD-ROM, on the Internet or otherwise, published, produced, edited or maintained by or at the direction of ECG (an "ECG Publication"), if the business has not; 6.3 the business is already included in an ECG Publication, if the business is not; 6.4 the business is required to provide details to ECG so an ECG Publication can be updated, if the business has not previously made a request, or given consent or authority, for its details to be included in that ECG Publication; 6.5 an ECG Publication is maintained by the Australian Government or sponsored or approved by the Australian Government; 6.6 ECG is a body sponsored or approved by, or associated or affiliated with, the Australian Government; 6.7 that updating of the business' details in an ECG Publication would be at no cost to the business, if there is a cost involved; and 6.8 if a document sent to an Australian business is an offer to provide in an ECG Publication at a cost; that the business would not incur a cost by completing, signing (or stamping) and returning the document. 7. ECG be restrained, whether by itself, its servants, agents or otherwise from the date of these orders, from sending any document to any Australian business offering to provide at a cost advertising for the business in an ECG Publication, that does not: 7.1 clearly and prominently, in at least 12 point font, disclose the nature and effect of the offer including: 7.1.1 whether ECG and the business have had any dealings with each other before; 7.1.2 that ECG is selling a directory listing service that has not previously been ordered; 7.1.3 the terms and conditions that attach to the service being promoted include price; and 7.1.4 that the document should not be responded to unless acquisition of the service being promoted is intended. 7.2 clearly and prominently disclose how the business is to be promoted; 7.3 clearly and prominently state the document is an offer to provide advertising in an ECG Publication at a cost; 7.4 state that the document is an offer to provide advertising in an ECG Publication at a cost more prominently that it makes any request for the business to provide ECG updated details of the business for any purpose; and 7.5 prominently state, if applicable, that by signing (or stamping) and returning the document the business is agreeing to pay a specified amount for an advertisement to be placed in an ECG Publication. 8. ECG be restrained, whether by itself, its servants, agents or otherwise from the date of these Orders, from claiming or seeking to obtain payment for Online Directory Services provided by ECG to an Australian business from 1 January 2006 to the date of these orders. 9. The respondent pay the applicant's costs as agreed or taxed. 86 The first declaration is one I propose to make as it reflects my conclusions, concerns conduct involving the contravention of the Act, reflects the issues presented, is in the public interest to make (including because it informs the public about the vices in the Form) records the Court's disapproval of the contravening conduct and may have some deterrent effect. The only modification I make to the declaration is to confine it in relation to the cost issue (1.1.4) to the period, as I apprehend it, the 2006 Form and the 2007 Form were published. 87 The second, third, fourth and fifth declarations concern ACCC's case based on s 53 which, as earlier discussed, have not been made out. Obviously those declarations should not be made. 88 I next consider the injunctions sought by the ACCC. Orders 6.1, 6.2, 6.3 and 6 .4 (together with the introductory words) concern conduct which the ACCC has not sought to impugn in these proceedings. It may very well be correct (indeed it would be consistent with my view of ECG's business model that it is correct) that the particulars on the Form that the recipient is asked to consider and, if necessary, to correct have been obtained by ECG from external sources, placed electronically on the Form and, perhaps, then become the address to which the Form is sent. In such a case, the particulars will not have come from a pre-existing ECG data base. If so, then patently and unambiguously ECG's activities are a scam though this may be an apt description in any event. However the difficulty with the proposed orders is that the ACCC did not allege that the conduct of ECG of procuring particulars of a business elsewhere and falsely portraying them as particulars on a record presently maintained by ECG was conduct contravening the Act. If it had and it had then made good this case on the facts the proposed orders probably should be made. However injunctive relief under the Act in a case of this type is to prevent conduct which has been both alleged and shown to be contravening conduct in the proceedings. Accordingly no order should be made in the terms proposed in 6.1, 6.2, 6.3 and 6.4. 89 For similar reasons proposed orders 6.5 and 6.6 should not be made. The case advanced and proved was not that recipients of the Form would have understood them to represent that an ECG publication or ECG itself was, as to the publication, sponsored or approved by and, as to the company, associated or affiliated with, the Australian Government. At the heart of the case was that the recipient would not appreciate any involvement by ECG at all. Proposed orders 6.5 and 6.6 should not be made. Proposed orders 6.7 and 6.8 are in slightly safer territory in the sense that they do concern conduct alleged and proved. However they concern conduct abandoned by ECG with the publication of the 2008 Form and the 2009 Form and, in those circumstances, it appears to me to be unnecessary to restrain the conduct at least in the absence of evidence suggesting a return to the use of the words "The updating is cost free". There is no such evidence. Accordingly proposed orders 6.7 and 6.8 should not be made. 90 While proposed order 7 is, in terms, directed to compel the use of a form with particular content rather than, as proposed order 6 was intended to do, restrain the use of a form with particular content, the subject matter of proposed order 7 is substantially the same as the subject matter of proposed order 6. For the reasons given in relation to that latter order, proposed order 7 should not be made. 91 I am prepared to make, with one modification, proposed order 8. I am satisfied, on the evidence, that an inference can be drawn that it is part of ECG's business model, generally to pursue payment comparatively unrelentingly from individuals who have unwittingly signed a form without intending to obtain any services from ECG. However there may well be individuals who willingly signed a form with the full knowledge of what they were agreeing to and would willingly pay the contractual sum. I wish to ensure, by the order, that ECG is not precluded from receiving payment. The order is intended to restrain ECG from claiming or otherwise seeking to obtain payment from businesses or organisations that are unwilling to pay. To that end I propose to add the words "(but not be restrained from receiving payment)" to the order. 92 As to costs, I am satisfied the ACCC is entitled to its costs of the proceedings with one minor qualification. It has pursued these proceedings to protect consumers from conduct proscribed by the Act. A charitable person would describe ECG's conduct as an opportunistic exploitation of consumers. A less charitable person would probably use much more robust language. The fact that the ACCC has failed to secure some of the orders sought and prove some of the conduct was proscribed does not, in my opinion, detract from its overall success in the proceedings. The qualification concerns the interlocutory contest about the proposed tender of the complaint documents. During that contest hearing time was consumed by comparatively aimless or pointless cross examination by junior counsel for ECG and also dealing with what appeared to me at the time to be almost high-minded allegations of criminal conduct on the part of the ACCC or its officers which were never pursued. Nonetheless ECG's lawyers engaged in a legitimate contest over the proposed tender of the complaint documents and the tender was withdrawn. Costs were incurred by ECG in resisting the tender. Rather than making a specific order concerning those hearings I propose to make a minor adjustment to the costs otherwise payable by ECG. It should be ordered to pay 98% of the ACCC's costs. I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate: Dated: 22 July 2011 Schedule 1 Schedule 2