Australian Competition and Consumer Commission v Productivity Partners Pty Ltd

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.