INTRODUCTION
1 At the very least, the Respondent, Nonchalant Pty Ltd (ACN 154 042 903), has behaved as its name suggests - nonchalantly. It operated a business offering motor vehicle hire services in Queensland trading as "Abel Rent A Car" (Abel). In May 2012, it published on its website, www.abel.com.au (the Abel website) and through a print advertisement available at its Coopers Plains depot in Queensland, that a variety of motor vehicles were available for hire from Abel at specified daily prices. In fact, some of the motor vehicles were not available for hire at the specified prices.
2 On 11 January 2013, the Applicant, the Australian Competition and Consumer Commission (ACCC), filed this proceeding seeking declarations pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) that Abel by representing, in trade or commerce, online and in print advertisements displayed at Abel's Coopers Plains depot, that it supplied motor vehicles for hire through the Abel website at the prices specified when in fact some of the motor vehicles were not available for hire at the specified prices has, in connection with the possible supply, or the promotion of the supply, of motor vehicle hire services:
1. made false or misleading representations with respect to the price of services in contravention of s 29(1)(i) of the Australian Consumer Law (the ACL), which is Sch 2 to the Competition and Consumer Act 2010 (Cth) (the CCA); and
2. engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL.
The ACCC also sought the imposition of pecuniary penalties pursuant to s 224 of the ACL.
3 When the proceeding was commenced, Abel was already in liquidation. The effective date of its liquidation was 8 December 2012. On 19 March 2013, the Court granted the ACCC leave nunc pro tunc pursuant to s 500(2) of the Corporations Act 2001 (Cth) to commence and to continue the proceeding.
4 On 11 April 2013, the matter was set down for trial. The liquidator was served with notice of the trial date. The liquidator of Abel has repeatedly stated that he does not intend to defend, or participate in, the proceeding. The ACCC was directed to file its evidence by 30 April 2013. It filed two affidavits; both sworn by Tom Bridges, an employee of the solicitors' firm acting for the ACCC. At the trial, the ACCC also relied upon two earlier affidavits filed in the proceeding sworn 11 March 2013 - an affidavit sworn by Guy Launder, an ACCC employee and an affidavit sworn by Marie Monforte, an ACCC investigator. The ACCC applied under r 30.21 of the Federal Court Rules 2011 (Cth) (the Rules) for an order that the hearing proceed in the absence of Abel. The trial proceeded on that basis.
5 For the reasons that follow, I would grant the declarations sought by the ACCC. The imposition of a pecuniary penalty is also appropriate. These reasons will consider first, the relevant statutory framework, and second the relevant conduct of Abel, before turning to an analysis of the representations made by Abel and the appropriate relief to be granted.