(b) entering upon the customer's property by jumping over a gate for the purpose of entering the garage and releasing the mechanism securing his garage door; and
(c) failing to desist from their attempts to repossess the vehicle when they had reasonable cause to apprehend that a that a physical confrontation may occur if they continued in those attempts.
13 Further the respondents concede that declarations may be made that they aided and abetted and were directly knowingly concerned in and party to the contravention of s 60 of the Act by Esanda by use of undue harassment in connection with the payment for services by the consumer by making repeated attendances at the consumer's residence and carrying out surveillance at the residence. The third respondent concedes that he aided and abetted and was directly knowingly concerned in and party to the contravention of s 60 of the Act by Esanda by use of undue harassment in connection with the payment for services by the consumer by approaching the consumer's wife at her place of work and asserting that the vehicle had been sold, hidden and/or stolen and demanding to know the whereabouts of the vehicle.
14 The second respondent concedes that it contravened s 60 of the Act in that, by its servants or agents, it used physical force in connection with the supply of goods and services to the consumer by Esanda by physically restraining the consumer while a tow truck was attached to his vehicle and the vehicle removed from the consumer's garage. The third-fifth respondents concede that they aided and abetted, and were directly knowingly concerned in and party to the foregoing contravention of the Act by the second respondent.
15 In the proposed orders the third, fourth and fifth respondents concede that by repeated attendances at the consumer's residence including undertaking surveillance, they contravened s 23 of the FTA by use of undue harassment in connection with the payment for services by the consumer and the third respondent concedes that by approaching the wife of the consumer at her place of work and asserting that the consumer's vehicle had been sold, hidden and/or stolen, and by jumping over the gate on the consumer's property to open the garage door from the inside, he contravened s 23 of the FTA by use of undue harassment and physical force in connection with the payment for services by the consumer. The conduct described constituted the contravention of s 60 of the Act committed by Esanda to which the third, fourth and fifth respondents were already liable as accessories pursuant to s 75B of the Act as set out in [13] above.
16 I invited the parties to make submissions on whether, insofar as s 23 of the FTA purported to impose direct liability on a person who was also a person "involved" in a contravention of the Act by a corporation, such a provision would be inconsistent with the terms of the Act and be rendered inoperative to the extent of that inconsistency by operation of s 109 of the Constitution. (See: Grace Bros Pty Ltd v Magistrates, Local Courts of New South Wales (1988) 84 ALR 492 per Gummow J at 502-505; Mallan v Lee (1949) 80 CLR 198 per Dixon J at 215-216). That is to say, if by operation of s 75B of the Act a person is liable as an accessory to a contravention of the Act committed by a corporation would it follow that the Act would not permit the FTA to invert the principles of accessorial liability by purporting to make such a person directly liable as a principal in respect of the same circumstances and subject matter. (See: Mallan v Lee at 216). In other words if the Act could not have so legislated by reason of that inconsistency in law may it be said that such a provision in the FTA would not be concurrent with the terms of the Act. The question raised does not concern the legislative power of the Commonwealth or a State but inconsistency in provisions enacted by those parliaments purported to operate concurrently.
17 Furthermore, it may be argued that if s 23 of the FTA purported to impose direct liability on a person whom s 75B of the TPA made liable as an accessory to the conduct of a corporation, such a liability imposed by the FTA would not be dependent upon satisfaction of a principal element required to be proved to attract liability under s 75B namely, that it be proved that the person had knowledge of the essential facts that constituted contravention of the Act by a corporation. (See: Yorke v Lucas (1985) 158 CLR 661 at 670). Accordingly s 23 of the FTA may be considered to be directly inconsistent with the terms of the Act to that extent. That is to say, s 75(1) of the Act, in providing that it operates concurrently with a State law, would not apply to a State law where, in respect of the same facts and the same subject matter, the Act and the FTA were not capable of "simultaneous obedience." (See: Ex parte McLean (1930) 43 CLR 472 per Dixon J at 483). It could be said that there would be "textual collision" between the Act and the FTA at that point. (See: Miller v Miller (1978) 141 CLR 269 per Barwick CJ at 275; Grace Brothers per Gummow J at 504; PSL Industries Ltd v Simplot Australia Pty Ltd (2003) 174 FLR 111 at [11] - [17]).
18 The parties submitted that s 75(1) of the Act applied because no conflict arose between s 23 of the FTA and the provisions of ss 60 and 75B of the TPA, and hence, no notice was required to be issued to the Attorneys‑General pursuant to s 78B of the Judiciary Act 1903 (Cth) to test the proposition. Accordingly the cause before the Court is not to be treated as involving a matter arising under the Constitution and it is to be assumed that the s 23 of the FTA has force and effect according to its terms. (See Glennan v Federal Commissioner of Taxation (2003) 198 ALR 250 at [14]; Re: Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 at 74). However, it remains a matter of discretion as to whether a declaration should be made that the third, fourth and fifth respondents contravened s 23 of the FTA by the same acts that made them accessories to the contravention of s 60 of the Act by Esanda. In all the circumstances I am not persuaded that it is either appropriate or necessary to make such a further declaration and will decline to do so.
19 The parties have agreed that prohibitory and mandatory orders be made for a prescribed period to bind the respondents to compliance with the Act in their future conduct.
20 I have read the statement of agreed facts and the material relevant thereto and I am satisfied that orders may be made by the Court in the terms of the minute of consent filed by the parties. In particular, I am satisfied that there is utility in making the injunctive orders proposed.
21 The task for the Court is to satisfy itself that it has jurisdiction in the matter and that the orders proposed by the parties are within the power of the Court and, where relevant, are an appropriate exercise of the Court's discretion.
22 Plainly the Court has jurisdiction in the matter and the orders proposed are within power. Insofar as the making of injunctive orders involves a particular exercise of the Court's discretion, as noted above I am satisfied it is appropriate to so exercise it. The proposed injunctive orders are expressed with sufficient clarity to avoid the respondents, as the parties bound thereby, being uncertain or in doubt as to the meaning or scope of the orders. The period of operation of the proposed orders appears to be reasonable.
23 There is a significant public interest in litigation being resolved in the manner proposed by the parties subject to it being plain that the accord is freely arrived at and that the parties have had the opportunity to be fully advised thereon. There is no issue in that regard in this matter. Each party has had the benefit of advice from senior or experienced counsel. The principles to which the Court may have regard in considering compromised procedures in the nature have been discussed in detail by French J in ACCC v McCaskey (2000) 183 ALR 159 at [30] as follows:
"The approach of the Court to the making of consent orders is informed by a general principle of judicial restraint. It is not the function of the Court to impede settlements between parties who are legally represented and able to understand and evaluate the desirability of agreeing to a settlement. Nor will the Court refuse to give effect to the terms of a settlement by refusing to make orders or accept undertakings where they are within jurisdiction and otherwise unobjectionable. The Court will not substitute orders which it thinks appropriate if those proffered are within power and within the range of appropriate dispositions of the case. But in making orders by consent or otherwise, the Court must ensure that the orders are within power and appropriate for it is exercising a public function in doing so and must have regard to the public interest - Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 95 FCR 114 at 131. In considering the orders proposed in this case, I have regard to the observations about the scope of the injunctive power under s 80 and the power to order corrective advertising under s 80A discussed in ACCC v REIWA and the cases there mentioned at 132-134."
24 Applying the same principles I am satisfied that orders should be made in terms of the minute of consent filed by the parties as reflected in the minute of orders attached to these reasons.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.