Applying these factors to Ms Gibson's conduct
55 I turn now to say something about the nature and extent of each act and omission constituting the contraventions. To begin with, it is worthwhile recounting the relevant chronology during which the conduct occurred. The evidence of these events is set out in the Liability Reasons and all I propose to do here is to summarise the chronology to put the contravening conduct in an appropriate perspective.
56 The Whole Pantry Apple app went on sale around mid-2013. The Whole Pantry Android app went on sale a little later, around September 2013. Ms Gibson put her book proposal to Penguin around September 2013. From the middle of 2013 onwards there were regular posts on The Whole Pantry's Facebook site and on Ms Gibson's Instagram site about her struggle with cancer, and then from late 2013, also about her charitable giving. On the evidence, her posts continued to about the middle of 2014, although since the accounts were not taken down until March 2015, there may have been further activity. If there was, it was not in evidence before the Court. The Whole Pantry book went on sale in October 2014. Sales of The Whole Pantry app and the book were thus occurring from mid-2013 through to around March 2015 with the exception of the Android app, which was available until May 2016. The media training interview conducted by Penguin with Ms Gibson occurred in late September 2014. I return to that interview in more detail below. By early 2015, journalists were making enquiries about the veracity of Ms Gibson's claims and activities. For example, it was a journalist who spoke to the Asylum Seeker Resource Centre (ASRC) concerning Ms Gibson's claims about donations to that organisation and this occurred in February 2015. Newspaper articles started appearing around March 2015, doubting Ms Gibson's story. Penguin withdrew The Whole Pantry book from sale in March 2015. The Whole Pantry Facebook and Instagram accounts were also taken down around March 2015. The Whole Pantry website is no longer publicly available, but as I say in the Liability Reasons at [80] it is unclear from the evidence when it was taken down. The Apple app was withdrawn from sale also in March 2015. In May 2015, Ms Gibson participated in an interview with the Australian Women's Weekly in which she confessed she had never had brain cancer and said, as I extract in the Liability Reasons at [74], "None of it's true". Ms Gibson participated in an interview with Channel Nine's 60 Minutes program which was aired in late June 2015. I deal with that interview at [75] of the Liability Reasons. As I note in [82] of the Liability Reasons, The Whole Pantry Android app was not withdrawn from the Google Play store until around May 2016.
57 Ms Gibson profited from her false statements about donating substantial portions of the proceeds from the sales of The Whole Pantry app and The Whole Pantry book over a period of about a year. During that time she made those representations repeatedly, and maintained them in various forms on social media, while carving out for herself a high public profile using her asserted charitable inclinations and activities as a cornerstone of shaping that profile.
58 I find that one of the clear demonstrations of the dishonesty and self-interest attending Ms Gibson's conduct was the fact that she and the company she controlled did not in fact make any donations to the organisations she had mentioned in her publicity statements until public questioning of her claims and activities surfaced in the media in around February 2015. The only payment in evidence which was made during the period she was making false statements was a payment to Vestal Water, on behalf of Kinfolk Café, for the café's water filtration systems, but this was not a payment which had featured in the representations found to have been contraventions of s 21 of the ACL (Vic). From this timing, I infer the donations which were made, and which fitted within the representations Ms Gibson had made, were a self-serving attempt to regain some level of credibility in relation to the representations she and her company had made in order to induce people to buy The Whole Pantry app and The Whole Pantry book. Those (proportionally small) donations should be seen as nothing more than an attempt to restore credibility to her conduct.
59 Leaving aside the Schwarz family (see [71]-[77] below) Ms Gibson and her company made only three donations. Of these, two occurred after her activities began to be publicly questioned. There was a donation of $1,000 to One Girl in March 2015. There was a donation of $5,000 to Bumi Sehat Foundation in July 2015. There was a donation of just over $4,800 to Vestal Water on behalf of Kinfolk Café, in April 2014, but as I have noted, neither Vestal Water nor Kinfolk Café were charities Ms Gibson had named and used to encourage people to buy her products. Additionally Ms Gibson's partner, Mr Clive Rothwell, donated $1,000 to the ASRC in April 2014, but there is no evidence the source of that money was from proceeds of The Whole Pantry app sales or the proceeds of The Whole Pantry book. I found at [84] of the Liability Reasons that no funds were ever donated to the ASRC by Ms Gibson or by her company. In circumstances where Ms Gibson had made representations that "a large part of everything" from the sales of The Whole Pantry book would be donated to charity, the miserly donations that were in fact made, and only made once Ms Gibson's falsities had been exposed, shows Ms Gibson in a singularly unfavourable light.
60 In terms of proportions, I found in the Liability Reasons at [233] that the company received over $420,000 from the sales of The Whole Pantry app and book and the advance from Penguin on the book. Of this figure, the evidence shows about $10,000 was donated, if one includes the donations unrelated to the charities identified in the representations, some of which received nothing. I also found:
That proportion does not represent a "large part of everything", nor can it represent "routine" donations by the respondents of part of the proceeds of sale. The $10,000 did not go to, and was not divided between, all the people and organisations which Ms Gibson had identified as the charitable projects to which members of the community would see some of the sales proceeds donated. Rather the donations were sporadic, ad hoc and, as to some of them, opportunistic: apparently motivated by the disquiet emerging in early 2015 concerning the truthfulness of Ms Gibson's claims.
61 As I find in [235] of the Liability Reasons, given the level of the company's income over 2013 and 2014, there was no apparent financial reason that the representations about charitable giving could not have been fulfilled.
62 Another feature of the chronology and of Ms Gibson's conduct which I specifically take into account is that she was clearly put on notice during the Penguin media training interview in September 2014 that there were likely to be real questions about her charitable giving representations. She could have admitted in the training interview that she and her company had not made good on their promises about charitable giving, and sought to rectify the situation. After that training interview, and after being put on notice about the questions over her behaviour, she could then have sought to make good on the promises she had made to the public about charitable giving. She chose to do neither. Instead, during and after the media training interview, she chose to perpetuate the fantasy and deception she had created.
63 There are a number of features of what Ms Gibson said during this interview which show her to be cavalier about the truth, unconcerned about following through with the representations she has made, and finally and most seriously, prepared to tell outright lies to Penguin about the charitable giving of herself and her company.
64 First, in the following extract Ms Gibson adopts a cavalier approach to her plans to making good on the representations she has been making to the Australian public for almost a year by the time she makes these statements:
MS B: Belle, one thing you've been very vocal about is giving a lot of the money to charity.
MS GIBSON: Yeah.
MS B: It could be that one of the financial newspapers wants to audit that.
MS GIBSON: Mm'hm.
MS B: Could you facilitate that process?
MS GIBSON: Yeah. At the moment, because we've just changed structures, we're getting all our books tidied. Yeah, but probably could in six months, once I get my shit together.
MS B: Because if you're saying that you're giving money to the Asylum Seeker Resource Centre and One Girl and Birthing Kit Foundation, people want to know, you know, what's going on.
MS GIBSON: Mm'hm.
MS B: So that's something you could be asked too.
MS GIBSON: Yeah.
MS B: Yeah, about all that.
MS GIBSON: Easy.
65 For Ms Gibson to give the response "easy" in these circumstances is astonishing. Aspects of what Ms Gibson tells the Penguin interviewer, on the evidence, bear no relationship to reality. In one portion of the training interview, having told the interviewer that the ASRC is one of the Australian charities she and her company are donating to, Ms Gibson says that "we're working on an event". The evidence does not bear that out. Ms Gibson then goes on to talk about other plans, which again on the evidence bear no relationship to what in fact occurred. She says:
MS GIBSON: Yeah. But they're- that's about it. I want to start doing something in Palm Island which is nice, but lots of the families actually are - most of the families are Australian based and they're nice stories to discuss.
MS A: Okay.
MS GIBSON: Because they're really tangible, and they'd be willing to talk as well.
66 Nothing in the evidence suggests Ms Gibson or her company spent, or intended to spend, any money on any activities on Palm Island in Queensland, which is an Aboriginal community.
67 Some statements Ms Gibson makes to the Penguin media interview trainer are outright untruths. When she is speaking during this interview, Ms Gibson speaks in the present tense, clearly conveying to the interviewer that what she is describing are activities which are - in September 2014 - currently taking place. She says:
MS GIBSON: So so far we've given to nine charities and they're chosen pretty much based on conversations that happen through our social media channels, tapping into what people are really passionate about at the moment, communities, organisations, families, people that they feel need functional support, you know. We don't donate in typical ways. You know, a family might need $10,000 and they'll go, 'Oh, this family is doing a money-raising drive. They need $10,000,' but I'll be the one that reaches and go, 'Well, what do you need that $10,000 for? Where do you need that support and where is it going?' and in many ways it's been, 'Well, we need money for vitamin C injections for our son who's living with cancer.' 'Great, we'll pay the bills that come in for that,' you know, or, 'Our child has a brain tumour. He can't regulate his own body temperature. We need an airconditioner.' 'Great. Here's $6000 for airconditioning.'
(Emphasis added.)
68 Later in the interview, when Ms Gibson is ridiculing signs she described seeing in Bali from companies who talked about donating 1% of their profits, Ms Gibson says:
MS GIBSON: --- 1 per cent? On our worst month, where I think, like, our worst month where we made, like, $700 or something on the app, we still donated 25 per cent of that and the rest went to bills to fix the bugs.
MS A: Is that kind of normal, around 25 per cent?
MS GIBSON: No, like, some months- you know, our first quarter, it was like 95 per cent.
(Emphasis added.)
69 Hypothetically it is possible Ms Gibson made statements of that kind either not knowing or not caring whether they were true. Given she was principally and intimately involved in the running of her company and in the promotion of The Whole Pantry app and book, and the entire media profile she had acquired which went with those products, I am not prepared to give her the benefit of the doubt in that way. The only purpose of making those statements was to convey information about her and her company's charitable giving activities. Ms Gibson was proffering specific percentages. She was proffering specific anecdotes about requests for funds. I am comfortably satisfied, even in the absence of evidence from Ms Gibson, that she made those statements to promote herself, her company and her products knowing they were not true, or at least not caring whether or not they were true.
70 During the Penguin media training interview, Ms Gibson was warned by the trainer on several occasions that she was likely to be publicly questioned about her charitable giving claims. It was in this context that Ms Gibson gave some of the responses to which I have just referred. The warnings and cautions fell on deaf ears. Ms Gibson was prepared to continue making a profit on the back of the goodwill of those members of the Australian public who are likely to have believed her representations, and bought her products at least in part because of them.
71 I turn now to deal with the nature of Ms Gibson's conduct in relation to the Schwarz family which, in my opinion, is particularly unconscionable and deserving of separate emphasis. It is necessary to set out the findings I made in the Liability Reasons about Ms Gibson's conduct in relation to the Schwarz family. At [45]-[50] I made the following findings:
45. In or about December 2013, a statement was also made on the Instagram account, in relation to donations to the Schwarz family. This statement was as follows:
Josh [Schwarz] has a similar malignant, inoperable brain tumour to the one I have. From the greatest ache and pains in my heart, I feel this little boys journey and story. Like I said last night - for the week, we chose this family to donate 100% of app sales to, in hopes to find them a medicine, holistic or happy miracle. If you've already bought the app, you can go to the link in my profile and buy a 'virtual ticket' to our 'world changing events' - this 'ticket' (donation) gives you power to give back to those without support, inspiration, education or the quality of life most of us are blessed with everyday.
46. It is unclear on the evidence how Ms Gibson came to know the Schwarz family. An article in evidence and published on 21 March 2015 by Rebekah Cavanagh in the Herald Sun, entitled "Family of desperately ill boy fear health guru Belle Gibson used their son to bolster her cancer claims", stated:
Gibson, 23, befriended Ms Schwarz on social media in 2013 after hearing of Joshua's fight for life with an anaplastic astrocytoma grade three (AA3), caused by a rare genetic disorder.
47. The article further quotes the boy's mother as saying that Ms Gibson used to ask the family "heaps of questions about Joshy's cancer and treatments. Was it to give her more credibility?" The family were reported as confirming they knew nothing of the fundraising promotion by Ms Gibson and received no donation from her.
48. Newspaper reports such as these offer little by way of probative evidence, even in a proceeding which is not defended. I place no weight on them for the purposes of any findings necessary to establish the contraventions alleged, and little weight on them even by way of background.
49. At [31(d)] of the annotated statement of claim, there is the following allegation:
Contrary to:
...
(d) the Schwarz App Sales Donation Representation, the Schwarz family did not receive the proceeds of sale of the Whole Pantry App for a week;
50. The annotation to this allegation concedes the Director relies only on "inference from all donations - supporting evidence not supplied for this". At best, the admission made by Ms Gibson through her solicitors is that $800 was paid to the Schwarz family. I return later in these reasons to whether that admission, compared to the representations alleged to have been made, can result in a contravention of the ACL (Vic).
72 What Ms Gibson said she would do appeared on her healing_belle Instagram account in December 2013. Ms Gibson and her company stated that "100% of app sales" for a week would be donated to the Schwarz family. As I found at [227] of the Liability Reasons, that representation was false. There was no evidence before the Court the Schwarz family received a cent from Ms Gibson or her company in relation to sales of The Whole Pantry app, although as I accepted, their son Joshua was truly seriously ill with brain cancer.
73 I noted at [228] of the Liability Reasons that, through her lawyers in answer to a s 126 Notice, Ms Gibson maintained that she collected $800 in a jar which she did give to the Schwarz family. Without evidence from Ms Gibson in the proceeding or direct evidence supporting such a claim, I was not prepared to accept that the amount of $800 or any other amount had in fact been donated. Further I was not prepared to find that in any event, the Schwarz family had received the money. It would have been a straightforward matter for Ms Gibson through her lawyers to proffer evidence of what the Schwarz family actually received. Finally, on her own account of this incident, it is clear most of the $800 came from other generous people at the event where the jar was passed around, not from Ms Gibson's own funds: see [44] of the Liability Reasons.
74 Whether or not the $800 donation (mostly from others) occurred, on the evidence what did not occur was that 100% of the sales of The Whole Pantry app in the week in December 2013 was donated to the Schwarz family.
75 As the evidence demonstrates, the particularly disgraceful aspects of Ms Gibson's conduct in relation to the Schwarz family, and Joshua Schwarz in particular, were that she sought to use the tragic terminal illness of a young boy for her own selfish purposes. She sought to promote herself by comparing herself and her asserted brain cancer with Joshua's. She sought to garner sympathy for herself, her commercial causes and her products, through that comparison. She sought to engender sympathy in members of the Australian public to whom she promoted herself and her company. The image she sought to portray was one of generosity and selflessness towards Joshua and his family. From these images, she sought to make commercial profits.
76 As Allsop CJ said in Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50; 236 FCR 199 at [296]:
The evaluation [of conduct in the context of unconscionability] includes a recognition of the deep and abiding requirement of honesty in behaviour; a rejection of trickery or sharp practice; fairness when dealing with consumers; the central importance of the faithful performance of bargains and promises freely made; the protection of those whose vulnerability as to the protection of their own interests places them in a position that calls for a just legal system to respond for their protection, especially from those who would victimise, predate or take advantage; a recognition that inequality of bargaining power can (but not always) be used in a way that is contrary to fair dealing or conscience; the importance of a reasonable degree of certainty in commercial transactions; the reversibility of enrichments unjustly received; the importance of behaviour in a business and consumer context that exhibits good faith and fair dealing; and the conduct of an equitable and certain judicial system that is not a harbour for idiosyncratic or personal moral judgment and exercise of power and discretion based thereon.
(Emphasis added.)
77 If ever there is conduct deserving of the label unconscionable, it is Ms Gibson's conduct in respect of Joshua.
78 I turn now to factors other than the nature and quality of each act and omission. As I have noted earlier in these reasons there is no specific evidence of any loss or damage to third parties arising from the contraventions, although the evidence demonstrates that many members of the public purchased The Whole Pantry app or The Whole Pantry book, or possibly both. As I have observed, it is likely many did so at least in part because of the charitable giving representations, thinking part of the money they were paying would go to a good cause. However, there is no admissible evidence before the Court from any third party to the effect that she or he would not have purchased either the app or the book if the true circumstances were known. There is no evidence before the Court concerning Penguin's circumstances in relation to these events, and any damage or loss it may have suffered. Accordingly, there is no evidence going to this factor.
79 I have already discussed the circumstances of each contravention.
80 There is no evidence that Ms Gibson has previously been found by a Court to have engaged in any similar conduct, so this factor has no role to play in fixing appropriate penalties in this proceeding.
81 As I have noted above, there is no evidence before the Court about Ms Gibson's current financial position.
82 Indeed there is no evidence about her historic financial position, aside from the evidence about the income of her company over the relevant period, and some evidence of some of those funds being spent on her personal expenses, including "travel, accom & conference" (see [16] of these reasons). The Court cannot speculate about such matters. Ms Gibson has consciously elected not to put any such evidence before the Court. Accordingly, her financial position is not a matter to which I can give any weight one way or the other in fixing an appropriate penalty, because there is simply no evidence before the Court about what her financial position is. I can neither find or infer that she has a capacity to pay a substantial penalty, nor can I find or infer she has no such capacity.
83 Ms Gibson's absence from these proceedings does however enable the Court to find that Ms Gibson has elected not to take any public responsibility for her conduct, nor to acknowledge the Court's findings in relation to the contraventions of ss 18 and 21 of the ACL (Vic). At least after the Court's reasons on liability were published (and a copy sent to Ms Gibson), Ms Gibson had an opportunity to acknowledge her wrongdoing in the context of this proceeding. She chose not to do so. She has chosen not to explain her conduct. She has chosen not to apologise for it. This is despite the evidence to which I have referred that her conduct had drawn into her deceit of the public the family of a terminally ill child. It is also despite the fact that her conduct has drawn into her deceit several organisations of good repute and who do good works in the Australian and international communities. That is not to suggest that there is a basis in the evidence for finding any particular loss or damage to any of those individuals or organisations. Rather it is to acknowledge that their names have become part of the public narrative of these events, not of their own choosing, but because of Ms Gibson's conduct.
84 Therefore, Ms Gibson's choice not to take any part in these proceedings does have some consequences. In fixing the appropriate penalty for each contravention, and in looking at the total sum which is appropriate to make Ms Gibson pay, there can be no allowance made for contrition, remorse, apology or acceptance of responsibility by Ms Gibson. Once again, it appears she has put her own interests before those of anyone else. If there is one theme or pattern which emerges through her conduct, it is her relentless obsession with herself and what best serves her interests.
85 In my opinion the appropriate penalties for each of the five contraventions vary. I consider that the first and second contraventions (the app sales donation claims and the company earnings donation claims) each deserve a significant penalty. They each involved conduct spread over a longer period of time, by representations made on a continuous basis to the public at large, with a likely connection between those representations and the numbers of sales of both the app and the book. It is important for the Court to make clear that the ease with which social media can be used to make representations does not mean that people can be less careful, or less truthful, about what they say.
86 Although the virtual nature of social media may tend to place a distance between those who communicate and those who receive the communications, it does not affect the character of those communications if they are false or misleading. It is important that those considering making claims through social media for commercial purposes understand that they will be held to account if those claims, and their conduct, are to be found to be unconscionable. Whether or not there was a causal connection between the making of the representations and people purchasing The Whole Pantry app, it was from these two contraventions that, on the evidence, Ms Gibson and her company received the majority of the sum of $440,500. I am satisfied that at least a significant number of people were likely to have been influenced to buy the app because of what Ms Gibson said about charitable donations.
87 The app launch donations claim related to a specific event in December 2013 and was a relatively isolated piece of conduct. However, it had a particular quality which affects the penalty I have decided to impose. Unlike the circumstances of the other representations, the public received nothing for the monies paid to Ms Gibson and her company as a result of this representation. All that was on offer was "virtual tickets" to a virtual event. In other words, people who paid money as a result of this representation did so as a straight out donation to the charities identified, although the money actually went to Ms Gibson and her company. This representation also related to the Schwarz family, conduct I view most seriously.
88 The Mother's Day event donations claim, the fifth contravention, was again a separate piece of conduct. It related to representations made over a comparatively short period of time, approximately seven days in May 2014. The income likely to have been derived from this was, in the circumstances, relatively small.
89 The fourth contravention, the Schwarz family app donations claim, is also a distinct contravention. It will be apparent from what I have said already in these reasons that I view that contravention as the most serious because of its subject matter and circumstances, and because of the way Ms Gibson sought to profit from the tragedy of a family to whom she otherwise had no connection.
90 I also take into account that some specific deterrence has already been achieved in relation to Ms Gibson. First there is the ongoing and adverse publicity to which she has been subject because of these proceedings. The fact of that publicity is not affected by her non-participation in the proceedings. The Court has issued injunctions in relation to any future conduct of Ms Gibson involving making certain claims in connection with the development, sale or promotion of health and well-being advice. On any view what has occurred to date as a result of these proceedings should provide some measure of specific deterrence to Ms Gibson and the penalties to be imposed should recognise the specific deterrence which is likely to have already occurred.
91 That said, there is no basis in the evidence (and in particular, I refer here to the responses of Ms Gibson both during the Penguin media training interview and during the 60 Minutes interview) for a great deal of confidence that aside from the injunctions, Ms Gibson, in pursuit of her own interests in the future, would refrain from inducing members of the public to purchase products she sells by making false claims. Ms Gibson's responses during those two interviews show little insight into the wrongfulness of her behaviour. The injunctions as sought and granted are of limited scope. It is likely that the seriousness of Ms Gibson's contraventions may only be brought home to her through the imposition of significant penalties, and that such significant penalties may be required to deter her from creating another scheme in the future which may not be caught by the terms of the injunctions.
92 I note also that Ms Gibson has already been ordered to pay a percentage of the Director's legal costs of this proceeding, fixed at $30,000. The 60 days in which Ms Gibson was given to pay that sum expired prior to the penalty hearing. The Director adduced no evidence, one way or the other, whether those costs had been paid.
93 Based on the Director's submissions, which I accept, if the income and expenditure figures, and the profit margins generated from them, are extrapolated across all the funds received by Ms Gibson and her company for sales of The Whole Pantry app and The Whole Pantry book totalling $440,500, then the amount of gross profit is (on the Director's calculations) $344,030.50, and the net profit is $216,285.50.
94 To that could be added the $75,000 Ms Gibson received personally for doing the 60 Minutes interview. She was paid that money to tell her story only because the conduct constituting the contraventions had made her notorious.
95 Given the findings I have made, both in the Liability Reasons and in these reasons, that Ms Gibson applied funds assigned in the accounts for "expenses" to herself, in calculating appropriate penalties for the five contraventions it is relevant in my opinion to use the gross profit amounts, together with the $75,000 from the 60 Minutes interview, as at least some kind of indicator for an appropriate penalty amount. These amounts total $419,030.50. To impose penalties much below this would mean Ms Gibson nevertheless came out ahead financially in comparative terms, despite her unlawful conduct. To take that matter into account is not to suggest there should be any mathematical equivalence: rather, it is to note that to others looking at the penalties imposed, it may appear still worthwhile to break the law in this way. On the other hand, the evidence also discloses that most of those funds were spent in one way or another (which could not be ascertained through the evidence), so it is not the case that the Court can be satisfied Ms Gibson has funds from that period still available to her.
96 Taking all these matters into account, synthesising them as best I can, I consider the appropriate penalties for each contravention to be as follows:
(a) For the app sales donation claims, a penalty of $90,000.
(b) For the company earnings donation claims, a penalty of $90,000.
(c) For the app launch donations claim, a penalty of $50,000.
(d) For the Schwarz family app donations claim, a penalty of $150,000.
(e) For the Mother's Day event donations claim, a penalty of $30,000.
97 That gives a total penalty figure of $410,000.
98 Considering, as I must, whether this total figure represents a sum that is just and appropriate given the nature of the contravening conduct as a whole, together with the other circumstances known to the Court on the evidence, I am satisfied it is. It is a large sum of money to impose on an individual. However, it is not the first time a penalty of that size has been imposed on an individual: see, for example, Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 2) [2012] FCA 535, which was a proceeding concerning ss 52 and 59 of the Trade Practices Act 1974 (Cth) but involved a manufacturing and product distribution business founded as a "charity concept" and involving volunteers who were retirees or semi-retirees manufacturing and packaging products to be sold through retail outlets.
99 If she is without considerable financial means (and as I have said, there is no evidence one way or the other), Ms Gibson may need to make arrangements to pay the penalty in instalments: that, it seems to me, may serve as a reminder for some time to come of the ramifications of engaging in unconscionable conduct.
100 The Director made no submissions whether the Court should impose a date by which the penalties needed to be paid. In the absence of any date in the orders, the penalties are due and payable within 14 days after the date of service of the order on the person: Federal Court Rules 2011 (Cth), r 39.02. In the absence of any application by the Director, or by Ms Gibson, the usual rule should apply.
101 Similarly, the Director made no submissions as to whether Ms Gibson should be ordered to pay any penalties imposed by way of instalments. Orders for payment of penalties by way of instalment may be made where the Court is satisfied that there is "sufficient financial information" to justify instalment arrangements: Australian Competition and Consumer Commission v Humax Pty Ltd [2005] FCA 706 at [12] (Merkel J), most recently reaffirmed in Australian Competition and Consumer Commission v Burden [2017] FCA 399 at [102] (Gilmour J). In those cases, the parties consented to the pecuniary penalties being paid by instalment, and to the specific instalment arrangements. Instalment orders were also made by Middleton J in the Hocking Stuart case, where the parties did not consent to a specific instalment arrangement: Director of Consumer Affairs Victoria v Hocking Stuart (Richmond) Pty Ltd (No 2) [2016] FCA 1435. There, his Honour allowed the respondent, Hocking Stuart, the opportunity to seek an order that it pay the pecuniary penalty by instalments. In that case, Hocking Stuart had participated in the case and made an application for instalment orders. Once again, Ms Gibson's election not to participate in the proceeding means that the party who might have been expected to move for such orders has not done so, and there is otherwise no evidence of her financial circumstances to justify orders now being made for payment by instalments.
102 I will reserve leave to Ms Gibson to apply to pay the penalties by way of instalments, on the condition that any such application is made within seven days of the publication of these orders, and supported by affidavit.