PRACTICE AND PROCEDURE - declarations on liability - whether hearing on penalties and other remedies should await foreshadowed appeal on liability - costs of liability proceeding
Source
Original judgment source is linked above.
Catchwords
PRACTICE AND PROCEDURE - declarations on liability - whether hearing on penalties and other remedies should await foreshadowed appeal on liability - costs of liability proceeding
Judgment (2 paragraphs)
[1]
The first respondent, Productivity Partners Pty Ltd (ACN 085 570 547) trading as Captain Cook College (CCC), in connection with the supply or possible supply of online diploma level courses (courses) to consumers whose enrolment was processed during the period 7 September 2015 to 18 December 2015 (Relevant Period), engaged in conduct that was unconscionable in contravention of s 21 of the ACL, in that CCC engaged in a system of conduct or pattern of behaviour:
(a) which comprised:
(i) making and implementing the following changes to its enrolment and withdrawal processes (Process Changes):
(A) outbound calls made by CCC staff to consumers after CCC had reviewed consumers' enrolment documents, and during which CCC staff asked the consumer a range of questions directed at identifying any issues concerning the consumer's suitability for the course, were replaced by inbound calls to CCC, made by the persons who conducted marketing and recruitment on behalf of CCC (Course Advisors) immediately after electronically submitting the prospective student's enrolment documents, so that the Course Advisors were generally present when the consumer completed the call. On these calls, CCC staff followed a script which consisted principally of closed questions (requiring only "Yes/No" answers) and reading scripted information, and did not have an opportunity to conduct an analysis of the enrolment documents in advance and identify any problems; and
(B) CCC abolished its campus driven withdrawal (CDWD) procedure, by which, prior to the Relevant Period, CCC had taken steps to withdraw consumers from their course prior to the first or subsequent census date if a consumer was not engaging in their course, was not contactable or if CCC staff otherwise concluded that the consumer was not suitable for their course, so that consumers subject to a CDWD would not incur VET FEE-HELP (VFH) debt (which arose upon the passing of a census date); and
(ii) claiming and retaining the consequently increased revenue by way of payment from the Commonwealth in respect of VFH debts incurred by consumers (VFH Revenue);
(b) and which occurred in circumstances where:
(i) a substantial purpose of CCC adopting and applying the Process Changes was to increase its VFH Revenue;
(ii) CCC knew that:
(A) there was a real risk that consumers recruited and enrolled by Course Advisors may not wish to enrol in an online course, would lack the language, literacy and numeracy skills, the computer skills and/or access to technology necessary to undertake the course, would not be contactable by CCC, and/or would have no or only minimal engagement with their course;
(B) there was a real risk, that regularly materialised, that Course Advisors marketing the courses and recruiting consumers on a commission based payment structure would engage in misconduct such as by making false or misleading representations to consumers that the courses were free, failing to properly inform consumers that they would incur VFH debt if they enrolled in the courses or the circumstances in which that VFH debt would have to be repaid, pressuring consumers to enrol, offering inducements to enrol, completing consumers' enrolment documents for them and coaching consumers for the purposes of the call with CCC with the result that unsuitable consumers became enrolled as students; and
(C) the Process Changes would increase the susceptibility of the enrolment process to Course Advisors' misconduct and reduce CCC's ability to promptly detect and prevent CA misconduct or to assess a prospective student's circumstances or ability to complete the course, and would therefore be likely to result in an increase in the number of consumers enrolled in courses who were not contactable, not engaged with the course, or who were unsuitable for the course incurring VFH debt for which they would get no benefit because they remained enrolled on a census date;
(iii) CCC knew, through its own analysis, audits, investigations and the receipt of complaints from consumers that, as a result of the Process Changes, in the 14 weeks comprising the Relevant Period when compared to the 10 months comprising the period 1 November 2014 to 6 September 2015 (Earlier Period), there was a substantial increase in:
(A) the number of consumers whose enrolment in a course was processed by CCC, with approximately 1,300 consumers enrolled during the Earlier Period and approximately 7,300 consumers enrolled in the Relevant Period;
(B) the number and proportion of consumers who, once enrolled, incurred a VFH debt;
(C) the number and proportion of consumers who incurred a VFH debt but who did not complete any unit of study or the course as a whole;
(D) the number and proportion of consumers who incurred a VFH debt but who did not engage in their course or were not contactable;
(E) CCC's VFH Revenue, with CCC claiming approximately $57.1 million in VFH Revenue for the combined Earlier Period and Relevant Period for students who did not complete the course, of which around $50.1 million was in respect of consumers whose enrolment was processed in the Relevant Period.
Blake Alan Wills (Wills) was knowingly concerned in, or a party to, CCC's contravention of s 21 of the ACL as set out in paragraph 1 above.
By reason of Wills's knowledge and conduct being attributable to Site Group International Ltd (ACN 003 201 910) (Site), Site was knowingly concerned in, or a party to, CCC's contravention of s 21 of the ACL as set out in paragraph 1 above.
Consumer A
In around October 2015:
(a) a course advisor (Recruiter A) who was engaged to market and promote CCC's courses to consumers, during the course of signing up Consumer A to a course offered by CCC (Sign-Up Meeting A):
(i) failed to tell Consumer A the cost of the course in which she was enrolled; and
(ii) failed to explain to Consumer A her ability to withdraw prior to the census date and the relevance of census dates;
(b) Recruiter A engaged in the conduct described in sub-paragraph 4(a) above on behalf of CCC, and as an agent of CCC acting within the scope of his authority, such that Recruiter A's conduct is taken, by reason of s 139B(2)(a) of the Competition and Consumer Act 2010 (Cth) (CCA) to be conduct engaged in by CCC; and
(c) CCC thereby:
(i) in respect of sub-paragraph 4(a)(i), made a false or misleading representation as to the price of the course, in contravention of s 29(1)(i) of the ACL; and
(ii) in respect of sub-paragraph 4(a)(ii), engaged in conduct that was misleading or deceptive or likely to mislead or deceive, in contravention of s 18 of the ACL.
During Sign-Up Meeting A:
(a) Recruiter A's conduct in relation to Consumer A:
(i) involved the conduct referred to in sub-paragraph 4(a) above;
(ii) was engaged in in circumstances where:
(A) Recruiter A had failed to explain key aspects of the VFH scheme to Consumer A, such as the need to cancel on or before the census date to avoid incurring a debt;
(B) Recruiter A had filled out the enrolment documents (including a pre-enrolment quiz (PEQ)), rather than ensuring Consumer A filled them out herself;
(C) Recruiter A let Consumer A believe she could keep a laptop he gave her when offering inducements to enrol was inconsistent with cl 4.4 of the VET Guidelines 2015; and
(D) Recruiter A told Consumer A the answers she should give to some questions during the inbound call, which meant that a procedure which may have, or should have, protected Consumer A's interests was subverted; and
(E) the inbound call procedure used by CCC was unsatisfactory because information about the course, the consumer's right to withdraw from the course and her liability for VFH debt was conveyed at high speed making it difficult to understand or digest, and no attempt was made to ensure that she understood the information and the consequences of her enrolment.
(b) Recruiter A engaged in the conduct described in sub-paragraph 5(a) above on behalf of CCC, and as an agent of CCC acting within the scope of his authority, such that Recruiter A's conduct is taken, by reason of s 139B(2)(a) of the CCA to be conduct engaged in by CCC; and
(c) CCC engaged in conduct that was, in the circumstances outlined in sub-paragraph 5(a) above, unconscionable, in contravention of s 21 of the ACL.
An agreement was formed between CCC and Consumer A for the supply by CCC of a course during the course of the inbound call between CCC and Consumer A, and that agreement:
(a) was an unsolicited consumer agreement within the meaning of s 69(1) of the ACL; and
(b) the agreement did not contain:
(i) on the front page, a notice that conspicuously and prominently informed Consumer A of her right to terminate the agreement; or
(ii) a notice which she could use to terminate the agreement,
and CCC thereby contravened s 79(b) and s 79(c) respectively of the ACL.
Consumer B
In around November 2015:
(a) a course advisor (Recruiter B) who was engaged to market and promote CCC's courses to consumers, during the course of signing up Consumer B to a course offered by CCC (Sign-Up Meeting B):
(i) told Consumer B that the course he was signing up to was free; and
(ii) told Consumer B that if he signed up to the course he would get a laptop for free, when in fact the laptop was available only on a loan basis;
(b) Recruiter B engaged in the conduct described in sub-paragraph 7(a) above on behalf of CCC, and as an agent of CCC acting within the scope of her authority, such that Recruiter B's conduct is taken, by reason of s 139B(2)(a) of the CCA to be conduct engaged in by CCC; and
(c) CCC thereby:
(i) in respect of sub-paragraph 7(a)(i), made a false or misleading representation as to the cost of the course in contravention of s 29(1)(i) of the ACL and engaged in conduct that was misleading or deceptive or likely to mislead or deceive, in contravention of s 18 of the ACL; and
(ii) in respect of sub-paragraph 7(a)(ii), made a false or misleading representation as to the existence of a condition, in contravention of s 29(1)(m) of the ACL.
During Sign-Up Meeting B:
(a) Recruiter B's conduct in relation to Consumer B:
(i) involved the conduct referred to in sub-paragraph 7(a) above; and
(ii) was engaged in in circumstances where:
(A) Recruiter B knew that Consumer B suffered from a brain injury which meant he was not capable of doing the course and was on a pension;
(B) Recruiter B persisted with her attempts to sign up Consumer B, notwithstanding him having told her that he could not do a course and was not interested;
(C) Consumer B felt pressured and unable to tell Recruiter B to leave;
(D) Recruiter B had filled out the enrolment documents (including the PEQ), rather than ensuring Consumer B filled them out himself;
(E) Recruiter B told Consumer B the answers he should give during the inbound call, which meant that a procedure which may have, or should have, protected Consumer B's interests was subverted; and
(F) the inbound call procedure used by CCC was unsatisfactory because information about the course, the consumer's right to withdraw from the course and his liability for VFH debt was conveyed at high speed making it difficult to understand or digest, and no attempt was made to ensure that he understood the information and the consequences of his enrolment.
(b) Recruiter B engaged in the conduct described in sub-paragraph 8(a) above on behalf of CCC, and as an agent of CCC acting within the scope of her authority, such that Recruiter B's conduct is taken, by reason of s 139B(2)(a) of the CCA to be conduct engaged in by CCC; and
(c) CCC engaged in conduct that was, in the circumstances outlined in sub-paragraph 8(a) above, unconscionable, in contravention of s 21 of the ACL.
An agreement was formed between CCC and Consumer B for the supply by CCC of a course during the course of the inbound call between CCC and Consumer B, and that agreement:
(a) was an unsolicited consumer agreement within the meaning of s 69(1) of the ACL;
(b) CCC did not send the documents evidencing that agreement (being a Training Plan and/or a Letter of Offer) to Consumer B by a method permitted by s 78(2) of the ACL, and CCC thereby contravened s 78(2) of the ACL; and
(c) the agreement did not contain:
(i) on the front page, a notice that conspicuously and prominently informed Consumer B of his right to terminate the agreement; or
(ii) a notice which he could use to terminate the agreement,
and CCC thereby contravened s 79(b) and s 79(c) respectively of the ACL.
Consumer C
In around November 2015:
(a) course advisors (Recruiters C), who were engaged to market and promote CCC's courses to consumers, during the course of signing up Consumer C to a course offered by CCC (Sign-Up Meeting C):
(i) represented to Consumer C that the course she was being signed up for would help her become a flight attendant;
(ii) told Consumer C that the course was free if she was on Centrelink; and
(iii) told Consumer C that she would get a free laptop that she could keep;
(b) Recruiters C engaged in the conduct described in sub-paragraph 10(a) above on behalf of CCC, and as agents of CCC acting within the scope of their authority, such that Recruiters C's conduct is taken, by reason of s 139B(2)(a) of the CCA to be conduct engaged in by CCC; and
(c) CCC thereby:
(i) in respect of sub-paragraph 10(a)(i) above, made a false or misleading representation in contravention of s 29(1)(g) of the ACL and engaged in conduct that was misleading or deceptive or likely to mislead or deceive, in contravention of s 18 of the ACL.
(ii) in respect of sub-paragraph 10(a)(ii) above, made a false or misleading representation in contravention of s 29(1)(i) of the ACL and engaged in conduct that was misleading or deceptive or likely to mislead or deceive, in contravention of s 18 of the ACL;
(iii) in respect of sub-paragraph 10(a)(iii) above, made a false or misleading representation in contravention of s 29(1)(m) of the ACL and engaged in conduct that was misleading or deceptive or likely to mislead or deceive, in contravention of s 18 of the ACL; and
During Sign-Up Meeting C:
(a) Recruiters C's conduct in relation to Consumer C:
(i) involved the conduct referred to in sub-paragraph 10(a) above; and
(ii) was engaged in in circumstances where:
(A) Recruiters C had filled out the enrolment documents (including the PEQ), rather than ensuring Consumer C filled them out herself;
(B) Recruiters C had failed to ensure that Consumer C answered the questions in the Application for Enrolment Form (including the PEQ) herself;
(C) Recruiters C let Consumer C believe she could keep a laptop they gave her when offering inducements to enrol was inconsistent with cl 4.4 of the VET Guidelines 2015;
(D) Recruiters C told Consumer C the answers she should give during the inbound call, which meant that a procedure which may have, or should have, protected Consumer C's interests was subverted; and
(E) the inbound call procedure used by CCC was unsatisfactory;
(b) Recruiters C engaged in the conduct described in sub-paragraph 11(a) above on behalf of CCC, and as agents of CCC acting within the scope of their authority, such that Recruiters C's conduct is taken, by reason of s 139B(2)(a) of the CCA to be conduct engaged in by CCC; and
(c) CCC engaged in conduct that was, in the circumstances outlined in sub-paragraph 11(a) above, unconscionable, in contravention of s 21 of the ACL.
An agreement was formed between CCC and Consumer C for the supply by CCC of a course during the course of the inbound call between CCC and Consumer C, and that agreement:
(a) was an unsolicited consumer agreement within the meaning of s 69(1) of the ACL; and
(b) the agreement did not contain:
(i) on the front page, a notice that conspicuously and prominently informed Consumer C of her right to terminate the agreement; or
(ii) a notice which she could use to terminate the agreement,
and CCC thereby contravened s 79(b) and s 79(c) respectively of the ACL.
Consumer D
In around December 2015:
(a) a course advisor (Recruiter D), who was engaged to market and promote CCC's courses to consumers, during the course of signing up Consumer D to a course offered by CCC (Sign-Up Meeting D):
(i) told Consumer D that the course was free;
(ii) told Consumer D that she would get a free laptop for signing up, which she could keep even if she did not do the course; and
(iii) told Consumer D that she could cancel her course at any time ;
(b) Recruiter D engaged in the conduct described in sub-paragraph 13(a) above on behalf of CCC, and as an agent of CCC acting within the scope of his authority, such that Recruiter D's conduct is taken, by reason of s 139B(2)(a) of the CCA to be conduct engaged in by CCC; and
(c) CCC thereby:
(i) in respect of sub-paragraph 13(a)(i) above, made a false or misleading representation in contravention of s 29(1)(i) of the ACL and engaged in conduct that was misleading or deceptive or likely to mislead or deceive, in contravention of s 18 of the ACL;
(ii) in respect of sub-paragraph 13(a)(ii), made a false or misleading representation in contravention of s 29(1)(m) of the ACL and engaged in conduct that was misleading or deceptive or likely to mislead or deceive, in contravention of s 18 of the ACL; and
(iii) in respect of sub-paragraph 13(a)(iii), made a false or misleading representation in contravention of s 29(1)(i) of the ACL and engaged in conduct that was misleading or deceptive or likely to mislead or deceive, in contravention of s 18 of the ACL.
During Sign-Up Meeting D:
(a) Recruiter D's conduct in relation to Consumer D:
(i) involved the conduct referred to in sub-paragraph 13(a) above;
(ii) was engaged in in circumstances where:
(A) Recruiter D did not explain key aspects of the VFH scheme to Consumer D such as the need to withdraw before the census date to avoid incurring a VFH debt;
(B) Recruiter D had filled out the enrolment documents (including the PEQ), rather than ensuring Consumer D filled them out herself;
(C) Recruiter D let Consumer D believe she could keep a laptop he gave her when offering inducements to enrol was inconsistent with cl 4.4 of the VET Guidelines 2015;
(D) Recruiter D told Consumer D some of the answers she should give during the inbound call, which meant that a procedure which may have, or should have, protected Consumer D's interests was subverted; and
(E) the inbound call procedure used by CCC was unsatisfactory because information about the course, the consumer's right to withdraw from the course and her liability for VFH debt was conveyed at high speed making it difficult to understand or digest, and no attempt was made to ensure that she understood the information and the consequences of her enrolment.
(b) Recruiter D engaged in the conduct described in sub-paragraph 14(a) above on behalf of CCC, and as an agent of CCC acting within the scope of his authority, such that Recruiter D's conduct is taken, by reason of s 139B(2)(a) of the CCA to be conduct engaged in by CCC; and
(c) CCC engaged in conduct that was, in the circumstances outlined in sub-paragraph 14(a) above, unconscionable, in contravention of s 21 of the ACL.
An agreement was formed between CCC and Consumer D for the supply by CCC of a course during the course of the inbound call between CCC and Consumer D, and that agreement:
(a) was an unsolicited consumer agreement within the meaning of s 69(1) of the ACL; and
(b) the agreement did not contain:
(i) on the front page, a notice that conspicuously and prominently informed Consumer D of her right to terminate the agreement; or
(ii) a notice which she could use to terminate the agreement,
and CCC thereby contravened s 79(b) and s 79(c) respectively of the ACL.
Consumer E
In around November 2015:
(a) course advisors (Recruiters E), who were engaged to market and promote CCC's courses to consumers, during the course of signing up Consumer E to a course offered by CCC (Sign-Up Meeting E) told Consumer E that he would get a free laptop if he signed up and failed to disclose to Consumer E the cost of the course in which he enrolled;
(b) Recruiters E engaged in the conduct described in sub-paragraph 16(a) above on behalf of CCC, and as agents of CCC acting within the scope of their authority, such that Recruiter E's conduct is taken, by reason of s 139B(2)(a) of the CCA to be conduct engaged in by CCC; and
(c) CCC thereby made a false or misleading representation in contravention of ss 29(1)(i) and 29(1)(m) of the ACL, and engaged in conduct that was misleading or deceptive or likely to mislead or deceive, in contravention of s 18 of the ACL.
During Sign-Up Meeting E:
(a) Recruiters E's conduct in relation to Consumer E:
(i) involved the conduct referred to in sub-paragraph 16(a) above; and
(ii) was engaged in in circumstances where:
(A) Recruiters E's conduct in offering Consumer E a laptop and telling him he could keep it was inconsistent with cl 4.4 of the VET Guidelines 2015;
(B) Recruiters E persisted with their attempts to sign up Consumer E to an online course notwithstanding Consumer E having told Recruiters E that he had disabilities which meant he could not do a course, and that he was otherwise not interested;
(C) Consumer E felt pressured by Recruiters E to sign up to the course;
(D) Recruiters E told Consumer E the answers he should give during the inbound call, which meant that a procedure which may have, or should have, protected Consumer E's interests was subverted; and
(E) the inbound call procedure used by CCC was unsatisfactory because information about the course, the consumer's right to withdraw from the course and his liability for VFH debt was conveyed at high speed making it difficult to understand or digest, and no attempt was made to ensure that he understood the information and the consequences of his enrolment.
(b) Recruiters E engaged in the conduct described in sub-paragraph 17(a) above on behalf of CCC, and as agents of CCC acting within the scope of their authority, such that Recruiters E's conduct is taken, by reason of s 139B(2)(a) of the CCA to be conduct engaged in by CCC; and
(c) CCC engaged in conduct that was, in the circumstances outlined in sub-paragraph 17(a) above, unconscionable, in contravention of s 21 of the ACL.
An agreement was formed between CCC and Consumer E for the supply by CCC of a course during the course of the inbound call between CCC and Consumer E, and that agreement:
(a) was an unsolicited consumer agreement within the meaning of s 69(1) of the ACL; and
(b) CCC did not send the documents evidencing that agreement (being a training plan and/or a letter of offer) to Consumer E by a method permitted by s 78(2) of the ACL, and CCC thereby contravened s 78(2) of the ACL; and
(c) the agreement did not contain:
(i) on the front page, a notice that conspicuously and prominently informed Consumer E of his right to terminate the agreement; or
(ii) a notice which he could use to terminate the agreement,
and CCC thereby contravened s 79(b) and s 79(c) respectively of the ACL.
THE COURT ORDERS THAT:
The respondents pay the applicant's costs, as agreed or assessed.
The proceeding be listed for further case management on 2 September 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
[2]
STEWART J:
1 On 2 July 2021, I published my reasons following the hearing on liability in this proceeding and directed that the parties bring in agreed or competing orders reflecting my findings and on the costs and further conduct of the proceeding: ACCC v Productivity Partners Pty Ltd (trading as Captain Cook College) (No 3) [2021] FCA 737. On 11 April 2019, an order had been made that the question of whether the respondents, or any of them, have contravened the Australian Consumer Law (ACL) be determined separately and in advance of any hearing on penalty or other relief.
2 The parties agree that declarations should be made at this stage of the proceeding and are in substantial agreement as to the terms of those declarations. There were minor differences which I have resolved but they are not such as to require any explanation beyond saying that I have given consideration to a number of authorities on the nature of declarations in a case such as this, what their purpose is and what is to be avoided. See Warramunda Village Inc v Pryde [2001] FCA 61; 105 FCR 437 at [8]; Rural Press Ltd v ACCC [2003] HCA 75; 216 CLR 53 at [90], [95], [99]; ACCC v MSY Technology Pty Ltd [2012] FCAFC 56; 201 FCR 378 at [35]; Australian Building and Construction Commissioner v CFMEU [2017] FCAFC 113; 254 FCR 68 at [93]. I am satisfied that the relevant requirements have been met and I propose to make the declarations.
3 In a case management hearing today, senior counsel for the first and second respondents indicated that his clients have instructed that an appeal be brought from the declarations once made. Senior counsel for the fourth respondent indicated that it was likely that his client would also give instructions to appeal from the declarations. All the parties were agreed that in the event that there is an appeal, further steps towards and the holding of a penalties and other remedies hearing should await the outcome of the appeal.
4 I accept that even though the parties all agree on that course, it is necessary that I am satisfied that that is the proper course. In that regard, there are clearly competing considerations. On the one hand, it is desirable to avoid the situation where a proceeding might go on an appeal more than once because of the wasted costs, time and effort that that entails, including the commitment of the resources of the Full Court to more than one appeal. On the other hand, if an appeal on liability is successful, all the time, effort and costs taken in preparing for and conducting a penalties and other remedies hearing and thereafter preparing and publishing a judgment will be wasted.
5 It seems to me that just what the right course is will depend on the circumstances of the particular case. As far as I am aware there is no authority to say that one course or the other is as a matter of principle or practice the preferred or only appropriate course, and the parties were not able to point me to any such authority. As I have said, they are in agreement that declarations should be made now and that a hearing on penalties and other relief should await the outcome of any appeal.
6 Reference was made to the decision in ACCC v Valve Corporation (No 4) [2016] FCA 382 where Edelman J explained in the circumstances of that case that it was preferable to proceed to a remedies hearing without making any declarations that would facilitate an appeal in the meanwhile. In ACCC v Unique International College (No 7) [2017] FCA 1289, Perram J explained why that case was different from Valve Corporation and why, in the circumstances of that case, it was preferable to make declarations and allow an appeal to proceed prior to any hearing on further remedies. The course adopted by Perram J was not criticised in the appeal from his judgment: Unique International College Pty Ltd v ACCC [2018] FCAFC 155; 266 FCR 631. In ACCC v viagogo AG (No 2) [2019] FCA 907, Burley J, in the circumstances of that case, declined to grant declaratory relief and made timetabling orders towards a hearing on relief.
7 In the present case there are a number of considerations which weigh in favour of making declarations now and holding off on any further remedies until after an appeal. I have in mind the following.
8 First, there is significant complexity and substantial volume to the factual circumstances giving rise to my findings of contraventions of a variety of different provisions in a number of different ways. Appeals from those findings have the potential to result in a number of different outcomes which could put a significantly different complexion or emphasis on the conduct of the respondents. Those differences could have a significant bearing on the penalties and remedies that might be ordered.
9 Another way of putting it is that any appeal will not necessarily have a binary outcome of success or failure. Some elements of the contraventions may survive an appeal and others may not, and even those that survive may be cast in a different light. The possible outcomes are numerous with the result that the prospect of any penalties and other remedies having to be revisited following an appeal is quite real.
10 Secondly, the ACCC has indicated that it will seek extensive, and consequently intrusive, discovery of the respondents for the purposes of a penalty hearing. In respect of the fourth respondent, a natural person, that includes extensive financial information including tax returns and other information that is inherently personal and confidential. To put the respondents, and the fourth respondent in particular, to the intrusive burden of making discovery of that type of information, and having it interrogated in a public hearing and subject to the Court's reasons which are bound to be made public, when it may all turn out to be for nothing is not something that should lightly be required.
11 Thirdly, given the number of contraventions, the number of respondents and the volume of the evidence, the hearing on penalties and other remedies is not likely to be short or easy. It seems to me, even at this preliminary stage, to be likely to be at least a few days and involved. In that regard I am mindful of the following types of relief that are foreshadowed in the second further originating application:
(1) pecuniary penalties under s 224 of the ACL;
(2) corrective notices and adverse publicity orders under s 246 of the ACL;
(3) compliance program orders under s 246 of the ACL; and
(4) a disqualification order under s 248 of the ACL.
12 Fourthly, it seems to me that the prospect of the parties reaching agreement on penalties and other remedies will be significantly improved after any appeal when the position on liability is more certain. That is at least in part because of the factors I have identified in [8] and [9] above.
13 Finally, there is the question of costs. There does not seem to me to be any reason why the ACCC should not have its costs to date. I will make such an order, which can then also be the subject of any appeal.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.