Plaintiff v First Defendant

Mr P Hiland, Solicitor to the Director for Consumer Affairs Victoria

1 The Director of Consumer Affairs Victoria ("the Director") has the responsibility in this State for the enforcement of consumer protection legislation, including the now repealed Fair Trading Act 1999 (Vic) ("the FTA").

2 From 2008 to 2010, the Director received a number of complaints from people who had parked their vehicles in privately operated car parks maintained by the second defendant, Ace Parking Pty Ltd ("Ace Parking") and who were issued with documents entitled "payment notices"[1] by the first defendant, Parking Infringements Pty Ltd ("Parking Infringements") which demanded payment of "penalties" and which threatened that court action would follow if payment was not made. This was followed by correspondence from Parking Infringement and its solicitors threatening legal action.

3 The Director brings this proceeding to protect the public interest and alleges that the defendants "engaged in conduct" within the meaning of that expression as it appears in the FTA. The defendants' conduct is alleged to be contrary to the misleading and deceptive conduct provisions, the false representation provisions and the harassment and coercion provisions of the FTA.

4 The alleged conduct consisted of issuing of documents to drivers and owners of cars parked in one of the car parks operated or managed by Ace Parking which had the following features:-

- a design, layout or get up similar to that of parking tickets and documents issued by government authorities for alleged public parking offences;

- terms such as "offence"; "offence date"; "breach"; "code"; "the relevant regulations"; "fines" and other similar words or expressions connoting that an offence had been committed;

- the shape of an outline of the State of Victoria in the heading;

- the term "Parking Infringements Victoria";

- references to "VicRoads" and the "Road Safety Act 1986 (Vic)";

- wording similar to the wording used in the Road Safety (General Regulations) 1999 (Vic) to describe regulatory contraventions or offences.

5 The issue of documents by the defendants having these features is alleged by the Director to have had the effect or likely effect of misleading users of the car parks about the basis or nature of the authority to issue such documents and to pursue demands for payment.

6 In addition, the Director alleges that the issuing of such documents had the effect of representing that users of Ace Parking's car parks may be prosecuted and be subject to a fine or a penalty for breaching regulations or committing an offence, whereas in fact those persons had not breached any regulation or committed any offence and were not liable to prosecution, fines or penalties. It is also alleged that the defendants represented that official car parking regulations applied to users of Ace Parking's car parks, when such car parks were private property and car parking regulations had no force or effect. The defendants are also alleged to have represented that, by entering and parking a car on a casual basis in an Ace Parking Permit Zone car park, the driver or owner of the car had entered into a contract with Ace Parking when that was not the case.

7 The defendants are also alleged to have engaged in undue harassment and coercion conduct within the meaning of the FTA by reason that they -

- made false or misleading representations to users of the car parks about the consequences of not paying demands for payment;

- sent letters of demand to owners of cars parked in an Ace Parking car park regarding demands for payment;

- threatened owners of cars parked in an Ace Parking car park that if the sum of money demanded by the due date was not paid that they would be lawfully obliged to pay a higher amount when this was not the case;

- unfairly threatened the users of Ace Parking car parks with the institution of legal proceedings.

8 The evidence put on by the Director reveals that many recipients paid without raising objection and that a considerable sum of money was raised by the defendants in the absence of any legal entitlement to do so. For the period 31 March 2007 to 26 February 2009 alone, Parking Infringements issued 7,468 demands for payment. It received $231,610 from persons who received demands for payment during the period 1 January 2007 to 5 December 2008. Those who did not pay were pursued by a solicitor demanding payment.

9 Ace Parking is the operator of 24 car parks in the Melbourne metropolitan area. It takes leases of vacant blocks of land, erects signage and installs parking ticket machines at those sites. The third and fourth defendants, Kevin English and James English, organised the design, form and content of the parking tickets issued from the parking ticket machines operated by Ace Parking. Aside from operating its own car parks, Ace Parking also manages a number of large car parks.

10 Parking Infringements was established as a separate entity at the instigation of Kevin and James English to protect the income of Ace Parking by patrolling Ace Parking car parks and issuing infringement notices to vehicles parked without a ticket or permit. Kevin and James English were responsible for the design, form and content of the infringement notices issued by the employees of Parking Infringements. In May 2009, Parking Infringements changed its name to Parking Patrols Victoria Pty Ltd.

11 Kevin English is and was the sole director of, and one of the three shareholders in Ace Parking. He is also a shareholder in Parking Infringements, and was a director and company secretary of that company from 1 August 2006 to 1 July 2008. James English is and was a shareholder in Ace Parking. He is also a shareholder of Parking Infringements and was a director from 1 August 2006 to 1 July 2008. I consider that the evidence, which includes admissions made by Kevin and James English, establishes that they are the "directing minds" of Ace Parking and Parking Infringements.

12 The evidence also establishes that James and Kevin English were jointly responsible for the followup actions taken by Parking Infringements if the infringement notices issued by that company were not paid. Initially they attended to this themselves but as time went on, from 1 November 2008 they engaged others, including solicitors, to do it.

13 The evidence in support of the Director's case is contained in 14 affidavits located in five volumes of court books containing over 1700 pages of material. The defendants did not file any answering affidavits to the affidavits filed on behalf of the Director as required by the order of Daly AsJ of 16 November 2010 and the Director's evidence is uncontested. I do not consider that there is any reason why the Director's evidence should not be accepted in its entirety.

14 At the trial of this proceeding the defendants appeared through counsel who indicated that the defendants were prepared to consent to the orders being sought by the Director. The orders sought included injunctive and declaratory relief, as well as orders for publication of advertisements informing the public of the outcome of this proceeding, for damages to be paid to identified complainants and that the defendants pay part of the Director's costs of the application.

15 Despite the agreement of the defendants to the orders sought by the Director, because the provisions of the FTA are considered to be public laws, the Court must satisfy itself that the relief sought by consent is appropriate and must consider whether it is within the power of the Court to make such orders and that it is appropriate to exercise its discretions in the manner sought.[2]

16 The Director seeks declarations pursuant to s 36 of the Supreme Court Act 1986 (Vic) and s 158(2)(h) of the FTA, injunctive relief under s 149 of the FTA, orders for compensation and recovery of loss or damage under s 149A and s 158 of the FTA, and an order pursuant to s 149A and s 153(1) of the FTA requiring that the defendants publish a public notice in respect to the outcome of this proceeding. As against Ace Parking alone, the Director seeks declarations pursuant to s 36 of the Supreme Court Act 1986 (Vic), s 158(2) and s 163 of the FTA and injunctive relief. As against Kevin and James English, declarations are sought under ss 145, 149, 149A, 153 and 158 of the FTA, together with injunctive relief.

17 The evidence of users of the car parks who complained to the Director and who have given affidavit evidence in this proceeding establishes the alleged contraventions occurred between March 2007 and March 2010. The relevant provisions of the FTA were repealed on 1 January 2011 with the introduction of the Competition and Consumer Act 2010 (Cth) which enacted the Australian Consumer Law. It is accepted by the parties that the alleged contraventions by the defendants of the FTA occurred whilst it was still in operation and that its provisions remain applicable in relation to the relief claimed by the Director in this proceeding.

18 I consider that there is abundant evidence to justify the making of the orders and declarations which are proposed by the director.

19 Section 1 of the FTA describes its main purposes. These include:

(a) the promotion and encouragement of fair trading practices and a competitive and fair market;

(aa) the protection of consumers;

(b) the regulation of trade practices.

20 Section 3, which prescribes definitions, defines "engaging in conduct" as meaning:

In relation to a person, includes all or any of the following -

(a) the doing of any act by the person;

(b) the refusal by the person to do any act;

(c) the person refraining (otherwise than inadvertently) from doing an act;

(d) the person making it known that an act will not be done;

(e) the person offering to do an act or to do an act on a particular condition;

(f) the person making it known that he or she will accept applications, offers or proposals to do the act or to do the act on a particular condition;

21 Section 4 provides for the definition of the notion of "Representations as to future matters". It states:

(1) For the purposes of Part II, if a person makes a representation about a future matter, including the doing of, or the refusing to do any act, and the person does not have reasonable grounds for making the representation, the representation is deemed to be misleading;

(2) in any proceeding under this Act concerning a representation made by a person about a future matter, the person making the representation bears the burden of proving that he or she had reasonable grounds for making the representation.

(3) Sub-section (1) is deemed not to limit by implication a reference in Part II to a misleading representation, a representation that is misleading in a material particular or conduct that is misleading or is likely or liable to mislead.

22 Section 9 deals with misleading or deceptive conduct. It states:

(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive;

(2) Nothing in the succeeding provisions of this Part is to be taken as limiting by implication the generality of sub-section (1).

23 Paragraph 1 of the originating motion provides particulars of the allegations against all the defendants as to misleading or deceptive conduct under s 9 of the FTA. Paragraph 11 makes allegations directed against Ace Parking alone. They are far too lengthy to recite in the body of these reasons. Because of their significance in this application, they appear as an appendix at the conclusion of these reasons.

24 Section 12 is concerned with the notion of false representations in relation to goods and services. In the present context, it provides relevantly:

False representation in relation to goods and services

(1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion or advertising by any means of the supply or use of goods or services -

...

(e) represent that goods or services have a sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have; or

(f) represent that any person has a sponsorship, approval or affiliation that the person does not have; or

...

(k) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy;

...

(n) make a representation that is false, misleading or deceptive in any material particular.

25 Paragraph 2 of the originating motion gives particulars of the alleged false or misleading representations for which declarations are sought under s 12 of the FTA. Again, they are lengthy and elaborate and I will not recite them in the body of these reasons and they are contained within the appendix. They might be described as something of a variation on a theme of the allegations made in paragraph 1 of the originating motion, where particulars are provided of the alleged misleading or deceptive conduct under s 9 of the Act.

26 Section 21 is concerned with a description of what constitutes harassment and coercion. It provides, relevantly:

(1) A person must not use physical force or undue harassment or coercion in connection with the supply or possible supply of goods or services to another person or the payment for goods or services by another person. [The penalties for the breach of that provision are then set out which are not relevant for current purposes.]

(2) Without limiting sub-section (1) the following conduct is deemed a contravention of sub-section (1):

(a) Using a document resembling a court document or a Tribunal document or an official document to mislead a person in connection with a debt or the consequences of not paying a debt;

(b) making a misrepresentation to a debtor about the consequences of not paying a debt or about the method of recovering a debt;

...

(f) use of a letterhead by a person which is liable to mislead the person to whom the letter is sent as to the identity, status or role of the person who used the letterhead;

27 Paragraph 3 of the originating motion details the particulars of how it is alleged that the defendants were involved in harassment and coercion within the meaning of that expression in s 21 of the FTA. Those particulars are also contained in the annexure appearing at the conclusion of these reasons.

28 Section 100 prescribes the functions and powers of the Director. Subsection (1) provides relevantly, for the present context:

(1) The functions of the Director include the following:

...

(c) to investigate breaches of this Act or the regulations or of a Consumer Act or the regulations under a Consumer Act;

(d) to prosecute breaches of this Act or the regulations or of a Consumer Act or the regulations under a Consumer Act;

(e) to institute and defend proceedings to achieve the purposes of this Act or the purposes of a Consumer Act;

29 Section 106I deals with the power of the Director to obtain information, documents and evidence:

(1) If the Director believes that a person is capable of providing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act, the Director may, by notice in writing, require that person -

(a) to provide to the Director, by writing a sign by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, that information; or

(b) to produce to the Director, or to a person specified in the notice acting on the Director's behalf, in accordance with the notice, those documents;

(c) to appear before the Director, or a person specified in the notice acting on the Director's behalf, at a time and place specified in the notice to give that evidence, either orally or in writing, and produce those documents.

(2) The Director of the person specified in the notice acting on the Director's behalf may require the evidence referred to in subs(1)(c) to be given on oath or affirmation and for that purpose may administer an oath or affirmation.

(3) A person must not -

(a) refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it; or

(b) in purported compliance with the notice under this section, knowingly provide information or give evidence that is false or misleading; or

(c) obstruct or hinder the Director in exercising that power under this section.

Penalty: 60 penalty units.

(4) Subject to sub-section (5) a person is not excused from answering a question, providing information or producing or permitting the inspection of a document on the ground that the answer, information or document may tend to incriminate the person.

(5) Despite sub-section (4), the answer by a person to any question asked in a notice under this section or the provision by a person of any information in compliance with a notice under this section, is not admissible in the evidence against the person -

(a) in a case of a person not being a body corporate - in any criminal proceedings other than proceedings under this section; or

(b) in the case of a body corporate - in any criminal proceedings other than proceedings under this Act.

30 Kevin and James English were both the subject of notices under s 106I(1) to appear before the Director's delegate and to give evidence orally. They cooperated in that exercise, and apparently directed the solicitors who act for them in this proceeding to provide documentation and information to the Director when requested to do so.

31 Section 145 provides relevantly for the present context:

A reference in this Division to a person involved in a contravention of this Act means a reference to a person who -

(a) has aided, abetted, counselled or procured the contravention;

(b) has induced, whether by threats or promises or otherwise, the contravention;

(c) has been in any way, directly or indirectly knowingly concerned in or party to, the contravention;

(d) has conspired with others to effect the contravention.

32 Section 149 provides for the remedy of injunctions.

(1) The Minister, Director or any other person may apply to the Supreme Court, County Court or Magistrates' Court for the grant of an injunction restraining a person from engaging in conduct that constitutes -

(a) a contravention of any provision of this Act; or

(b) attempting or conspiring to contravene such a provision; or

(c) aiding, abetting, counselling or procuring a person to contravene such a provision; or

(d) inducing or attempting to induce a person, whether by threats, promises or otherwise, to contravene such a provision; or

(e) being in any way directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision.

33 The nature of the injunctive relief sought by the Director is set out in paragraph 4 of the originating motion and appears in the annexure to these reasons. In substance, it seeks an injunction restraining the defendants from continuing to engage in the offensive conduct which is identified in that paragraph.

34 Paragraph 153 of the Act makes provision for adverse publicity orders. It provides as follows:

(1) A court may, on the application of the Minister or the Director, make an adverse publicity order in relation to a person if the court is satisfied that the person has contravened or has been involved in a contravention of Part 2, 2A, 2B, 3, 4, 5 or 6.

(2) If in any proceedings for an offence against this Act, a person is found guilty of an offence against this Act, the court, in addition to any other penalty it may fix or order it may make, may make an adverse publicity order in relation to the person.

(3) In this section, an adverse publicity order, in relation to a person, means an order that -

(a) requires the person to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession for access to; or

(b) requires the person to publish, at the person's expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order.

(4) This section does not limit a court's powers under any other provision of this Act.

35 The order sought in respect of that adverse publicity is detailed in paragraph 7 of the originating motion and seeks that the defendants place an advertisement in the Herald Sun and The Age newspapers in the form of a public notice which follows the template of Annexure B to the originating motion. That notice has been the subject of subsequent refinement in the Director's written submissions.

36 Section 158 provides for orders to be made against persons found to have contravened the FTA, including orders that a person pay the amount of any loss of damage suffered by an aggrieved person. Paragraph 6 of the originating motion seeks such an order in favour of several complainants.

37 The Director's evidence consisted of affidavits of several complainants, its own officers, a person involved in the production of the parking and infringement notices on behalf of the defendants and an officer of VicRoads (who provided information from the VicRoads database to the defendants pursuant to orders made by the Magistrates' Court) to enable them to pursue customers of the car parks. I will deal first with a survey of the evidence of the various complainants, who are all members of the public who parked at one of Ace Parking's car parks.

38 Ms Ruggeri parked her vehicle in a car park at Prospect Street in Box Hill at approximately 5.40pm on 16 June 2008 in order to go shopping at the Centro Complex in Box Hill. When she parked her car in the Prospect Street car park, there were only about eight or so cars parked around the perimeter of the car park and it was largely empty.

39 Ms Ruggeri had not previously parked in that car park. When she went to the Centro Complex, she usually parked her car in a car park which she believed was operated by the local council. She would do this approximately once a week. When the car park was part of the Box Hill Bowl, the Prospect Street car park was a council operated car park.

40 When she entered the Prospect Street car park on 16 June, it was dark. She did not see any signs or notice any differences between that car park and the council car park where she usually parked. She did notice a ticket machine in the car park that was very similar to those located in the council car park and the former Box Hill Bowl car park. Because of this, she believed it was a council operated car park and that parking would be free after 6pm.

41 Because it was just before 6pm and she considered that she would be quick getting her shopping, she did not obtain a ticket from a ticket machine located in the car park. She went into the Coles supermarket to do her shopping. When she emerged about 15 minutes later and returned to her vehicle, she found a rectangular piece of paper affixed to her windscreen with a piece of adhesive tape which she immediately believed to be a parking fine. When reading the notice, she read that she had been fined $66 for failing to pay and display a valid ticket.

42 The notice attached to Ms Ruggeri's car was printed on both sides. On one side, underneath the heading "Parking Infringements Victoria" (which was superimposed over a logo in the shape of an outline of a map of the State of Victoria) the following appeared:

"Payment Notice"

Failing to pay within 28 days will incur additional costs.

Offence Date: 16/6/2008 05.41pm

Penalty $66

Due on 14/07/2008

The notice was assigned a ticket number and set out a date and time. The location of the car park was identified, underneath which the following words were written:

Offence BR207(2) fail to pay fee/display a valid ticket and obeying instructions on sign/metre/ticket et cetera (NO VALID TICKET)

44 The details appearing below the heading on that side of the notice were electronically generated, presumably by a portable machine. On the reverse side of the notice, the name Parking Infringements Victoria again appeared with an outline of the map of Victoria as part of the logo. It required the recipient to pay the notice within 28 days, stating:

You are in breach of the Conditions of Entry displayed in the location and as a result you are required to pay the amount stated under this notice within 28 days. If such amount is not paid within 28 days the fees will increase to $88 and legal action will be commenced against you without further notice for the full amount owing, plus costs in the Magistrates' Court of Victoria.

45 It then prescribed methods of payment, including provision for payment by credit card. It also stated:

CONTESTING THIS NOTICE, an objection must be made in writing within 14 days from the date of this notice, including a copy of this payment notice to: "Parking Infringements Victoria" PO Box 353 Prahran VIC 3181.

46 The wording on the parking notice which is exhibited to Ms Ruggeri's affidavit uses the words "offence" and "penalty" and "fail to pay". She states that this gave her the impression that she had broken the law and that as a result she was required to pay $66. At the time she removed the ticket from her windscreen on 16 June, there was noone present policing the car park or otherwise working there. She went to the ticket machine but had difficulty reading the parking restrictions that applied to the car park because it was dark. She did see however that the restrictions on the parking were said to apply 24 hours a day. She then left the car park.

47 Ms Ruggeri subsequently became aware that the parking notice had not been issued by the council but by a private company and that the payment could not be paid at the Whitehorse Council Offices. She looked for a telephone number on the parking notice so that she could speak to someone about it but there was no contact number provided. She was able, through other channels, to obtain a contact number for the company but when she called it a recorded message directed callers to put all queries in writing to Parking Infringements Victoria, PO Box 353, Prahran VIC 3181, the same PO Box number on the back of the infringement notice she found on her car.

48 After making the telephone call to Parking Infringements and hearing the recorded message, she decided that she would not pay the amount demanded. She did not hear anything further until late November 2008. Prior to this, she had contacted the Director's staff and enquired about her rights in respect of any claims that Parking Infringements had against her. Following that advice, she waited to see whether Parking Infringements would pursue her.

49 On 27 November 2008, she received a letter from Parking Infringements at her home address. The letter was addressed to her and was headed with a logo with the words "Parking Infringements Victoria" superimposed over an orange image of Victoria in the same format as that on the payment notice she found on her car. The letter stated that the fine had increased, from $66 on the notice, to $129.50. Ms Ruggeri was concerned by the words in the letter that said "Additional costs will be incurred if no action is taken by the due date".

50 On 8 December 2008, she contacted Consumer Affairs Victoria and lodged a written complaint following a conversation with the staff at that office.

51 By mid February 2009, following a request by her to Parking Infringements for photographic evidence of her car to be sent to her, she received a letter from Parking Infringements. The letter attached a photograph of what appeared to be the back of Ms Ruggeri's car and extended the time for payment of the $129.50 until 5 March 2009.

52 On 3 March 2009, she wrote to Parking Infringements enclosing a cheque for $66, being the amount originally demanded on the infringement notice. On 14 March 2009 she received a letter from Parking Infringements which rejected her partpayment of the fine but which indicated that her cheque would not be returned. The letter also indicated that Parking Infringements had extended the "Due Date" for payment until 2 April 2009. Failing which the matter would "be passed on to our legal department for actioning".

53 On 30 March 2009, she wrote to Parking Infringements enclosing a further cheque for the balance, $63.50, indicating that she was paying the fine under protest and not accepting liability.

54 Each of the letters coming from Parking Infringements Victoria was written on a letterhead which included the logo to which I have referred.

55 On or about 27 November 2008, Mr Kapevic received a letter at his home address. The letter had the words "Parking Infringements Victoria Pty Ltd" written on the top lefthand side of the page, superimposed over an orange image in the shape of an outline of a map of Victoria. The letter also had a light orange coloured watermark on it which stated "OVERDUE". The letter required him to pay $129.50 by 15 December 2008 and if this did not happen, a summons would be issued against him to recover that amount, together with any legal costs incurred.

56 Like Ms Ruggeri, Mr Kapevic's car was parked in the Prospect Street car park in Box Hill. He customarily does his shopping in the Box Hill Centro Shopping Complex and has done so for a number of years. It is his practise to drive there and park in the Coles supermarket undercover car park but on occasions that car park can become crowded at peak shopping times. When that occurs, he uses the car park located in Prospect Street in Box Hill. He would have done so about two to three times per week in the previous 12 to 18 months. On each occasion that he parked in the Prospect Street car park, Mr Kapevic states that he purchased a ticket from a ticket machine located in the car park. Because he had read the instructions written on the ticket machine when he first used the Prospect Street car park, he habitually abided by those instructions and returned to his car and placed the ticket face up on the dashboard in front of his steering wheel.

57 Prior to receiving the letter of 24 November 2008, he did not know who owned or operated the Prospect Street car park and cannot recall seeing any other signs in the car park. He had not previously received a payment notice and as far as he was aware, he had not overstayed the time stamped on the tickets or done anything else contrary to the instructions on the ticket machines from which he obtained tickets.

58 There was no telephone number on the correspondence which he received which he could telephone to speak with anyone about the matter. He states that that made him suspicious the demand may not be genuine.

59 On 10 December 2008, Mr Kapevic lodged a formal complaint with Consumer Affairs Victoria about Parking Infringements. He was contacted by an officer of Consumer Affairs Victoria shortly afterwards. In late January 2009, on advice from Consumer Affairs Victoria staff, he wrote to Parking Infringements asking it to produce the time, date stamp and photographic evidence referred to in the letter of 24 November 2008. He received a response late January 2009 which enclosed a photograph of his car and which was said to have been taken on 30 June 2008 while parked in the Prospect Street car park. Using digital software available to him at his workplace, he expanded the image in order to read the date which appeared in a shaded bar in the top left-hand corner of the image which was too small to read on the original version. It stated "13 June 2008 0733pm".

60 On 24 February 2009, Mr Kapevic wrote to Parking Infringements in response to their letter of 29 January 2009, taking issue with the contention that the photographic image could be said to be evidence of his alleged parking infringement and requesting that Parking Infringements produce "actual evidence" in support of its allegation. The letter was responded to by Parking Infringements but not satisfactorily. Mr Kapevic did not reply.

61 On 15 May 2009, Mr Kapevic received a letter from Hill Legal Lawyers and Consultants, stating that Hill Legal acted for Parking Infringements and demanded that Mr Kapevic pay $129.50. He did not respond to the letter but he was concerned at the threat made of the institution of legal proceedings.

62 In mid-June 2009, he received a further letter from Hill Legal stating that "Unless we receive immediate payment of the sum of $129.50 we will be issuing legal proceedings against you."[3]

63 Mr Kapevic forwarded the correspondence received from Hill Legal to Consumer Affairs Victoria. After the second letter, there was no further correspondence from Parking Infringements or from Hill Legal.

64 Like the correspondence received by Ms Ruggeri, all the correspondence from Parking Infringements to Mr Kapevic was written on the letterhead of Parking Infringements with the accompanying logo consisting of an image in the shape of an outline of a map of Victoria.

65 On 31 March 2007, Ms Loh parked her vehicle in an area off Robert Street in Collingwood in order to shop at the Supré Warehouse in Robert Street. The area was fenced off but did not appear to her to be what she described as a proper car park as there was a great deal of graffiti on the walls, a big loading bay shutter door which had been pulled down and which appeared to be locked, and a large quantity of rubbish lying around. All the other shops in the area looked closed. Ms Loh thought that the people who owned or worked in these closed shops must use the parking area to park their cars during the week when those shops were open and that the other cars in the parking areas belonged to other shoppers going to the Supré Warehouse.

66 When she parked her car, she saw "Permit Zone" signs posted on one of the walls in the area and signs saying "Ace Parking Reserved", but as the surrounding shops, save for the Supré Warehouse were closed, it appeared to her that any restrictions on parking did not apply on the weekends. When she entered the car park, parked her car and walked to the Supré Warehouse she did not see any permits displayed on the windscreens of other parked cars or anything else that led her to believe that she was not entitled to park there.

67 When she returned to her car at about 12.45pm, she noticed that there was a white piece of paper under the windscreen wiper affixed to her windscreen with a small strip of adhesive tape. She removed it from her windscreen and read it. The piece of paper had the words "Parking Infringements Victoria", printed over a yellow outline in the shape of a map of Victoria at its top with the heading "Payment Notice". The document referred to the Road Safety Act 1986 and stated that if she failed to pay $66 within 28 days she would incur additional costs. The notice stated that it was an offence for her to park her car and not display a ticket. It stated:

Offence: RR185(1) In a permit zone/fail to display a valid permit.

68 It then gave details of the "offence date", "penalty" and the date by which payment was due to be made.

69 The ticket that was affixed to Ms Loh's windscreen was in identical form to the document affixed to Ms Ruggeri's windscreen. Like the notices referred to by the other deponents, no telephone contact number appeared on the notice and simply directed Ms Loh to make a payment of $66 by credit card, cheque or money order to "Parking Infringements Victoria", PO Box 353 Prahran VIC 3181. There was no-one present who was checking cars or issuing parking tickets that she could speak to at that time, nor was there anyone who appeared to be patrolling the car park.

70 When she arrived home, she conducted a Google search for "Ace Parking" and found a telephone number which she called. The phone was answered by a male person by words to the effect "Hello, Ace Parking". She explained that she had just got a parking fine from Parking Infringements for parking in an area in Robert Street in Collingwood and that she was trying to find a number for them so that she could telephone them to explain. The person at the end of the phone indicated that he could not give her that number and that she would have to write to them. When Ms Loh sought to take it further, the person said:

You'll have to pay the fine. If you don't, Parking Infringements Victoria will take you to court. You are obliged to pay. If you don't pay, you will have to pay the fine plus Parking Infringements Victoria's legal costs as well.

72 Ms Loh stated that she was confused about the identity and status of Ace Parking and Parking Infringements. She believed that "permit only" signs were used or issued only by government or other official bodies which had the power to issue parking permits. She considered that Parking Infringements must have been such an official or government body and that by parking in the area on the day in question without a permit she had committed some offence or broken a law. This led her to conduct some internet research resulting in a conclusion that if she had indeed breached "RR185 (stopping in a permit zone)", that offence attracted a penalty of .6 penalty units and that on her calculation she was liable to a penalty of $64 and not $66 as demanded in the infringement notice.

73 A week later, she contacted the City of Yarra and spoke to a member of the staff there about the notice which she had received. After receiving some advice from that person, she wrote to Parking Infringements on 3 April 2007 asking them to withdraw the notice. The letter articulated in detail why the imposition of the penalty should be waived in her case.

74 Shortly afterwards, she received a letter from Parking Infringements headed "Payment Notice - to the owner" on the Parking Infringements letterhead described above. The letter enclosed a photographic image of her car and stated that as she had parked her car on private property, the City of Yarra had no jurisdiction over the car parking lot and demanded payment of $66. The letter said that she was now required to pay $88, being the amount described in the original payment notice, plus late fees. The letter gave details of the car park location, the "offence date", the "Code" (and with it a reference to RR185(1)), and "penalty" ($66 and Due date). The letter contended that as a condition of entry to the car park, "you have expressly consented to us obtaining the vehicle registration information from VicRoads or any other responsible authority under the Road Safety Act 1986". Like the payment notice affixed to the windscreen, the letter did not provide any contact number for Parking Infringements.

75 About mid-April 2007, Ms Loh contacted Consumer Affairs Victoria and lodged a complaint about Parking Infringements.

76 On 22 April 2007, she received a letter from Parking Infringements stating that the information collected by it was treated as private and confidential and that:

Information is used only for communication and prosecution purposes and once the notice has been finalised and payment cleared, payment details are destroyed.

77 The letter also stated that if Ms Loh did not pay the $88 within 14 days from the date of the letter, legal action would be commenced against her "without further notice for the full amounts owing, plus costs in the Magistrates' Court of Victoria."

78 On 26 April 2007, she posted a cheque for $66 to Parking Infringements Victoria under cover of a letter. In that letter, Ms Loh asked Parking Infringements to give her access to all personal information it had about her. She said that as she had contested the fine it was unfair for them to impose late fees on her and also made the point that by paying the fine she was not admitting any guilt but that she was paying the fine due to Parking Infringement's threat to take her to court and impose additional charges.

79 On about 24 May 2007, she received a letter from Parking Infringements stating that the only information obtained about her was from her registration sticker and from her correspondence with Parking Infringements. It also said that she could have asked for an extension of time to pay the original amount but as she had not asked for such an extension, she had incurred late fees and that the amount of $88 stood.

80 After receiving that letter from Parking Infringements, she has had no further correspondence from that company.

81 Ms Cogger works in Church Street, Richmond. From about August 2008, she regularly drove to work and usually parked in a car park at 658 Church Street, Richmond. She did this approximately three to four times per week. On each occasion, she obtained an all day parking ticket from a ticket vending machine located towards the front of the car park and displayed the parking ticket as instructed on the dashboard of her car. Since she commenced parking in the Church Street car park, she only noticed one sign that identified the price of all day parking as being $6.

82 On about 27 September 2008, she drove her car into the Church Street car park and parked her car in a vacant car parking space. As she had done before, she paid for a $6 all day parking ticket from the vending machine and put the ticket on the dashboard of her car and went to work.

83 Upon returning to her car that afternoon, she noticed a white slip of paper stuck to the windscreen with a small strip of adhesive tape. She removed the piece of paper which appeared to be a parking infringement notice as it had the words "Parking Infringements Victoria" on the top. She was confused as to why she would have received such notice as she had purchased and displayed a parking ticket as required. She then noticed that the parking ticket that she had placed on her dashboard that morning was no longer there. She opened the car door to look for it and found that it was on the floor of the car. She states that it must have fallen down there without her noticing when she closed the door that morning. During the next several days, she arranged to pay the fine by money order. This was one of the three payment options offered on the notice that was affixed to her car windscreen. She paid the fine by posting a money order together with the parking ticket to Parking Infringements Victoria at PO Box 353, Prahran VIC 3181, the name and address given on the notice. She did not hear further from Parking Infringements in respect of the 27 September 2008 infringement notice.

84 On the morning of 29 September 2008, she again entered the Church Street car park and parked in a vacant car parking space. She paid for a $6 all day ticket from the vending machine and placed it on her dashboard. As she left to head to her workplace, she could see the ticket out of the corner of her eye sitting on the dashboard. She was satisfied that it had not blown off when she closed the door. Ms Cogger could see her car in the car park from her office window and when she looked at it during the day she noticed that there was a white piece of paper on its windscreen. She went down to her car and found another parking notice issued by Parking Infringements. There was no one present who looked like a parking inspector or who looked as if they worked at the car park. She then also noticed that the parking ticket that she had bought that morning was not sitting face up on the dashboard, rather was lying face down which meant that the date and time that she had purchased the ticket was not visible to someone looking into the car. Ms Cogger was sure that she placed it face up on the dashboard but believed it must have blown or flipped over with the gust of air generated when she closed the car door that morning. As this was the second occasion that she had received an infringement notice, despite actually purchasing a ticket, she decided that if she explained the situation to Parking Infringements and showed them the valid ticket they would waive the fine. Like the other deponents, she searched the document for details of a telephone number so that she could ring to explain her position but the only contact details were for a PO box in Prahran which meant that she could only write a letter setting out the position.

85 She wrote to Parking Infringements at the Prahran address, explaining what had happened and asking that the fines be waived.

86 In late October 2008, she received a letter at her home address from Parking Infringements. The letter was headed "Payment Notice - to the owner" and enclosed photographic images of her car with an upside down ticket on the dashboard. The letter said that she had committed an offence and that she would have to pay $66 (or $88 for later payment). In the letter, Parking Infringements threatened her with legal action if she failed to pay. The bottom of the letter set out payment methods.

87 Ms Cogger was frustrated and annoyed that Parking Infringements had not taken into account the fact that she had bought a valid ticket and had produced that ticket as evidence of that fact. In addition, Parking Infringements had taken nearly three weeks to respond to the letter in which she had explained the situation. This delay meant that she only had two days to pay the lesser amount of $66 and, as she was about to go on holidays, it did not give her the chance to further challenge the fine without risk of the penalty increasing. In addition, the payments methods offered, transmission of credit card details or a cheque or money order to the PO box address, were time consuming and inconvenient. There was no opportunity given to pay the amount demanded in person or by Bill Pay or at the post office.

88 On 27 October 2008, Ms Cogger paid the sum of $66 to Parking Infringements using her husband's credit card. The total charge was $68, with a $2 fee for the transaction.

89 Some days after she returned from her holiday, on about 16 November 2008, and after reviewing what had happened, she made a complaint about Parking Infringements to Consumer Affairs Victoria.

90 Ms Cogger deposes that on each occasion she paid the fines to Parking Infringements, she thought she was paying a fine issued to her for breaking the law. She did not know that Parking Infringements was demanding she pay the amounts on the notices left on her car for what amounted to an alleged breach of contract by her. It was not until she made her complaints to Consumer Affairs Victoria that she became aware that Parking Infringements was not empowered to issue parking fines. Prior to making her complaint, she had not turned her mind to the nature of the relationship that she had with Parking Infringements and nothing she saw at the Church Street car park led her to understand that she had entered into a contract with Parking Infringements by parking in the car park.

91 Ms Cogger believes, based on the words on the payment notice and the contents of the letter that she received from Parking Infringements, that she had committed an offence and that Parking Infringements was within its rights to fine her or penalise her for breaking the law. She did not know that the final letter sent to her by Parking Infringements was in fact in relation to a civil claim against her for what she now knows to be contended as being "liquidated damages" for breach of contract. She believes that she had to pay the fine or she would be taken to court and possibly end up with what she describes as a "criminal charge" against her name.

92 The payment notices affixed to Ms Cogger's windscreen are in identical form to those described above in relation to the other deponents, as is the letterhead used by Parking Infringements in its correspondence to her.

93 On 20 June 2009, Mr Kaufmann drove with his son to the Box Hill Centro Shopping Complex in Box Hill. He did not usually shop in this area and went there specifically to buy a mobile phone for his son.

94 He parked in the car park at 8 Prospect Street which is located just off the street. There was no boom gate when he entered and he did not notice any signs. There was no indication that it was a private car parking area. He found a vacant space and parked his car and it was not until he saw a ticket machine near the parking space that he realised he would have to pay for a parking ticket.

95 After parking the car, he asked his son to go to the ticket machine and purchase a ticket for parking, which he did. His son returned to the car and Mr Kaufmann saw him place it on the passenger side dashboard of the car. He does not recall if the ticket was face up or down. They then left to go shopping.

96 When they returned to the car about 40 or 50 minutes later, he noticed that there was a small slip of paper taped to the front windshield. Mr Kaufmann immediately thought it was a parking fine because of his experience with parking fines issued by local councils or the police, which are delivered by sticking them to the car windscreen. Initially, he was not concerned by the situation as he had purchased a ticket to park in the car park. He considered that he would be able to write to the relevant council and tell them that it was a misunderstanding and that they would waive the fine.

97 He took the piece of paper off the windscreen and read it and it was a notice from Parking Infringements. The notice stated that it was issued at 2.39pm. It was a document in the same form as the others which have been described above and was headed "Payment Notice". Mr Kaufmann deposes that it had the appearance of an infringement notice or parking ticket that a council would issue. The wording on the top of the ticket, "Parking Infringements Victoria" suggested to him that it was a council body. The payment notice stated that it had been issued because he had not displayed a valid ticket. Mr Kaufman checked the ticket that his son had bought from the ticket machine and saw that it had an expiry time of 3.02pm printed on it. He was annoyed to have been issued with a parking fine when he actually had a valid ticket and he thought that the council had made a mistake in issuing it.

98 He did not see anybody in the car park that he could speak to about the matter and decided he would write to the council, send them his valid ticket and tell them they had made a mistake.

99 When he had a chance to closely examine the payment notice, he noticed that it contained words to the effect that if he did not pay the $66 to Parking Infringements Victoria by 18 July 2009, he would have to pay $88 and run the risk of additional costs in legal action if he failed to pay. These words made him suspect that perhaps it was not issued by the council.

100 Mr Kaufmann deposes that he believed that the only people who could issue parking fines for parking were councils and the police because there are laws allowing them to issue fines and fines cannot be issued without legal authority. He decided to approach Consumer Affairs Victoria for information.

101 In late June 2009 he made contact with Consumer Affairs Victoria and learnt that the payment notice was not issued by a council but by a private company and was not a fine, but a claim for liquidated damages for alleged breach of contract.

102 Mr Kaufmann was concerned that the payment notice had been designed to look like a legitimate council parking fine but was in fact not a council issued fine. He decided to completely ignore it. He did not write to the address provided on the payment notice as he did not consider it was necessary and did not want to devote any more time to dealing with it.

103 On about 26 August 2009 he received a letter from a company called "Parking Patrols (Vic) Pty Ltd"[4] at his home address. The letter was addressed to him and confirmed that the parking fine that he had received on 20 June 2009 had not been paid. The letter contained words to the effect that the fine had now incurred late fees and legal fees and that he now had to pay $129.50. Before he received the August 2009 letter, Mr Kaufmann had thought that the fine had been issued by Parking Infringements. He did not reply to the August 2009 letter or pay the parking fine as demanded.

104 Some six months later, on 2 February 2010, he received a letter from Hill Legal at his home address. The letter from Hill Legal was addressed to him and contained words to the effect that that firm was acting on behalf of Parking Patrols and that if he did not pay the parking fine plus late fees totalling $129.50 within seven days, Hill Legal were instructed to issue legal proceedings against him without further notice. He did not reply to the February 2010 letter or pay the parking fine as requested.

105 On 2 March 2010, he received a second letter from Hill Legal at his home address. The letter contained words to the effect that unless he paid Hill Legal immediately the sum of $129.50 they would issue legal proceedings against him. Again, he did not reply to that letter or pay the parking fine as requested.

106 Mr Kaufmann asserts the opinion in his affidavit that the conduct of Parking Infringements is deliberately deceitful and predatory. He states that the company set out to create the impression that their "parking fines" are council parking infringement notices or fines in order to mislead unsuspecting members of the public into paying them. Mr Kaufmann considers that the conduct was an attempt to intimidate him into paying with threats of legal action and that many members of the public are not capable of resisting such threats and end up paying. He considers this to be unjust.

107 He concludes his affidavit by deposing that, as far as he knows, no legal proceedings have been commenced against him involving the claim that he pay the purported payment notice.

108 On about 10 December 2007, Mr du Plessis drove to the Centro Shopping Centre in Box Hill and arrived there at about 6pm. He parked the car (which was registered in his wife's name) at the car park at 8 Prospect Street, like several of the other complainants. He had previously parked in that car park. Each time that he used the Prospect Street car park prior to 10 December 2007, he obtained a ticket from the ticket machine located in that car park and displayed the ticket on the dashboard of the car.

109 He did not turn his mind to whether the car parks were privately operated or operated by the local council, or whether there were any differences between the car parks near Centro and how they operated. On occasion, Mr du Plessis had parked at another car park opposite the Prospect Street car park.

110 After parking the car in the Prospect Street car park, Mr du Plessis walked to the Coles supermarket. As it was after 6pm, he did not get a ticket from the ticket machine because he believed the parking was free after that time and no ticket was required. His basis for forming that view was his experience in parking at the other car park and that view was reinforced when he noticed that the boom gate at the entrance of the second car park was open. When he entered the car park at Prospect Street, he did not notice any signs that indicated to him that parking in the car park was not free after 6pm.

111 When he returned to the car he noticed a piece of paper stuck to the car's windscreen with a piece of adhesive tape. He read the document which had the words "Parking Infringements Victoria" printed at the top. That document, which is exhibited to Mr du Plessis' affidavit, is in the same form as the tickets referred to by the other deponents. Mr du Plessis says by reason of the form of the ticket, its positioning on the windscreen of the car and its wording, that he believed it was a parking fine which had been issued to him after failing to pay for parking. He considered that the words of the document were advising him that he had committed an offence by failing to pay for parking and that as a consequence he had been fined $66 which he had to pay to Parking Infringements by 7 January 2008. The ticket contained no contact details or telephone number other than the PO box number where payments were to be directed.

112 On 13 December 2007, he obtained a postal order in favour of Parking Infringements to pay the amount demanded on the parking ticket. He posted that money order to Parking Infringements at the PO box number identified on the parking ticket. He did not challenge the ticket as he believed he must have misunderstood that parking in the car park was free after 6pm and that he was therefore obliged to pay the amount demanded in the parking ticket.

113 Significantly, he considered that the name "Parking Infringements Victoria Pty Ltd" had official connotations and believed that he had been issued with a parking fine which was required by law to be paid. He states that being new to this country he did not want to get into trouble by failing to comply with the law.

114 On 22 May 2008, Mr du Plessis' wife showed him a notice she received in the mail at their home in Box Hill from Parking Infringements. The document was addressed to Mr du Plessis' wife and was titled "Payment Notice - to the Owner". That notice contained a statement to the effect that, because Parking Infringements had not received a payment in the amount of $66 in respect of the parking fine issued in December 2007, the amount outstanding had increased from $66 to $129.50 and the increased sum including late fees and legal fees. The notice threatened his wife with legal action if she did not pay the company the amount of $129.50 by 17 June 2008.

115 Mr du Plessis states that he was very annoyed that his wife had received a notice after he had sent the money to Parking Infringements as directed on the document affixed to the windscreen. The notice received in May 2008 contained no telephone number, website address or other contact address on the notice other than a post office box address to which he had earlier posted the money order. He was unable to find a telephone number or other contact details in order to contact the company directly by internet searches.

116 In the course of his internet research, Mr du Plessis conducted a number of searches for information about parking infringements and fines. He became aware that only certain government entities and other authorised bodies had the right to issue infringement notice and demand penalties. Prior to this he had considered that a parking fine issued by and on behalf of Parking Infringements was of the same status as a parking fine issued by the local council.

117 On 6 June 2008, he wrote to Parking Infringements at the PO box address to which he had posted the money order, explaining that he had paid the fine in December 2007. He attached a copy of the receipt for the money order. On about 20 June 2008 a response was received from Parking Infringements stating that Australia Post had confirmed that the money order had "not been processed" and that the notice "stands as is". The notice threatened legal action if the amount of $129.50 was not paid. As Mr du Plessis' wife was the owner of the car, he did not understand why she was being threatened with legal proceedings when he had been driving and parked the car at Prospect Street car park.

118 On 24 July 2008, Mr du Plessis' wife showed him a letter she had received in the mail from Hill Legal, who were acting on behalf of Parking Infringements. The letter threatened to commence legal proceedings against his wife without further notice if they did not receive payment of $129.50 within seven days. Mr du Plessis was very upset and concerned that the matter had escalated to a stage where Parking Infringement Victoria's solicitors were involved and threatening legal proceedings. Another letter of demand arrived on 19 August 2008 from Hill Legal, again threatening the commencement of legal proceedings against his wife for $129.50 unless that amount was not paid immediately.

119 The correspondence received from Parking Infringements contended that Mr du Plessis had entered into a contract by driving into and parking in the car park. Mr du Plessis says that nothing in the wording used on the parking ticket or in any of the notices sent by Parking Infringements Victoria revealed to him that the demand was based on the law of contract.

120 Mr du Plessis heard nothing further from Parking Infringements or from Hill Legal after September 2008. Mrs du Plessis, in a separate affidavit, confirms her husband's version of events.

121 Some of the sites which were identified by the defendants' lawyers as being car parks operated by Ace Parking were visited by inspectors from the Director's office and these visits were the subject of affidavits filed by the Director. One inspector, Mr Dullard, describes his visits to nine of the car parks that he undertook in September 2009 in his affidavit. The car parks where the complainants who have sworn affidavits parked, at 658 Church Street, Richmond, 8 Prospect Street, Box Hill, and Robert Street, Collingwood, were among those car parks visited. In the course of those visits, Mr Dullard's assistant photographed various features of the car park, including in particular the signage and ticket machines. Those photographs were exhibited to his affidavit.

122 I shall confine my survey of Mr Dullard's evidence to those car parks although it seems that each of the nine car parks had identical or very similar signage. The car park at Prospect Street Box Hill, at which Messrs Kapevic, Kaufman and du Plessis and Ms Ruggeri parked, was visited in late April 2009 and was generally typical of the other car parks. That car park consisted of approximately 89 car parking spaces.

123 The signage included a prominent "Ace Parking" logo which was readable from some distance. The signage included the cost of parking and the hours of operation. Adjacent to those details was a sign headed up "Contractual Terms and Conditions". The contractual terms and conditions, which were set out below that heading are in much finer print and could only be read from a quite short distance from, the sign.

124 The terms and conditions on the signage consisted of 11 paragraphs. The significant ones in the present context stated as follows:

1. If you fail to comply with any of these terms and conditions or if your ticket pass or meter expires then you agree to pay liquidated damages in the sum of $66 together with any resulting legal or other cost we may incur.
2. We may notify you of any liquidated damages by placing a notice on your vehicle.

125 A ticket purchased by Mr Dullard from the car park at Prospect Street stated on the reverse side to the electronically printed materials:[5]

OTHER SIDE UP

This ticket must be displayed clearly on the vehicle dashboard with the expiry time and date visible from outside the vehicle. The vehicle must be correctly parked. This ticket permits you to park until the printed expiry time and in accordance with the relevant regulations.

FINES MAY APPLY FOR FAILURE TO DO SO.

Patrons using this facility do so at their own risk.

126 A ticket purchased by Mr Dullard on 18 August 2009 at the 88 Wellington Street, Collingwood car park, at which Ms Loh had parked, the electronically generated ticket had on its front side the name "Ace Parking Pty Ltd" next to the time of purchase of the ticket. On the reverse side the following words appeared:[6]

OTHER SIDE UP

This ticket must be displayed clearly on the vehicle dashboard with the expiry time and date visible from outside the vehicle. The vehicle must be correctly parked.

This ticket permits you to park until the printed expiry time and in accordance with the relevant regulations.

FINES MAY APPLY FOR FAILURE TO DO SO.

Patrons using this facility do so at their own risk.

127 At the Wellington Street car park, there was a sign which was headed "Permit Zone" which then stated:

Vehicles must display a valid Ace Parking issued parking permit.

Penalties apply.

128 Adjacent to that sign was a sign with the Ace Parking logo and the word "Reserved" on it. The contractual terms and conditions which have already been extracted above were set out on a board in very fine print. It was in the same form as the other notices of terms and conditions to which I have referred.

129 At a car park operated by Ace Parking at 64-72 Stanley Street, Collingwood at which Mr Dullard attended on 18 August 2009, there was signage stating:[7]

Warning

PUBLIC CAR PARK

Vehicles not displaying a valid parking ticket will be clamped.

Underneath, the words "Road Safety (Clamp) Act No. 25 of 1996" the reference was then made to a fee of $100 and telephone numbers for the calling of the relevant persons to obtain release of the clamped vehicles were then provided.

130 In November 2008, the Director commenced an investigation into the activities of Ace Parking and Parking Infringements. In the course of that investigation, the Director served a notice on Parking Infringements under s 106I(1)(a), (b) and (g) of the FTA requiring it to produce specified documents and information. That notice was complied with in January 2009 when, in a letter from Parking Infringement's solicitors, a list of addresses at which Parking Infringements operated car parking facilities was provided. In a similar notice in March 2009, Ace Parking was required to produce specified documents and information to the Director, which it did in early March 2009. Included in the information provided by the defendants' solicitors was a schedule of properties at which Ace Parking operated car parking facilities. Those locations included the sites at which the complainants whose evidence is referred to above parked .

131 In April 2009, Kevin English, a director of Parking Patrols and the sole director of Parking Infringements, was served with a notice under s 106I(1)(c) of the FTA requiring him to attend at the Director's offices and give evidence to the Director's delegate about his knowledge of the activities and the services supplied by Parking Infringements and Ace Parking in the car parking operations.

132 I agree with the director's submission that it is implicit from the terms and context of subs 106I(4) and (5) of the FTA that the Legislature intended that evidence gathered at examinations conducted by the Director or the Delegate under s 106I of the FTA can be used in civil proceedings. In Kotan Holdings Pty Ltd and Anor v Trade Practices Commission,[8] the Full Court of the Federal Court, in considering a similar provision contained in s 155 of the Trade Practices Act 1974 (Cth) ("the TPA"), accepted that it was a permissible use of the power under that section to conduct an examination for the purposes of providing the Trade Practices Commission with admissible evidence intended to be tendered in contemplated proceedings for contravention of the TPA. Certainly, there is no provision in the FTA which prevents its use in such a way. There can be no better purpose for conducting such examinations than to aid enquiries being conducted by the Director and to provide the Director with admissible evidence intended to be tendered in proceedings for contravention of the FTA. In any event, I note that no objection was taken by the defendants to the use of the transcripts of the examinations of Messrs English in that regard, which transcripts are exhibited to an affidavit of Peter Hiland sworn 6 August 2010.

133 In the course of the examination conducted of him, Kevin English cooperated and made admissions as to his involvement in the dealings of Ace Parking and Parking Infringements. Kevin English stated to the director's delegate that he caused the incorporation of Ace Parking in May 1998. Mr English stated that Ace Parking's business was to operate and manage car parking facilities for profit; it leased or managed land, put up signage and installed parking ticket machines on the sites. He explained the difference between a car park operator and a car park manager as being that a manager runs the car park for a fixed annual sum, whereas an operator runs the car park for his own benefit.

134 He stated that before the establishment of Parking Infringements, he and James English tried various methods to pursue people who had parked their cars in Ace Parking car parks without paying. These methods included gluing notices on the driver's side window, noting that the car was illegally parked and if it occurred again action would be taken, fixing wheel clamps, and observing what other operators were doing in their car parks and trying to emulate them.

135 He stated that an approach was made to Melbourne City Council which was asked as to where it obtained its machines to issue infringement notices. One solution was to man the car parks, however, this was considered to be too expensive. Kevin English stated that a parking fee of $5.50 a day resulted in Ace Parking making a good return. He said that it was estimated that Ace Parking was getting paid for 81 per cent of the cars that parked in their car park. It was not getting paid for 50 cars a day, as a result of which it was losing $250 per day or about $5,000 a month. He stated that this factor brought about the establishment of Parking Infringements.

136 In his interview, Kevin English stated that he and James English were responsible for developing and changing the terms and conditions for the Ace Parking business, including obtaining legal advice on the terms and conditions. One of the car parks operated by Ace Parking at Bowen Crescent had a boom gate at the entrance, requiring the driver to get a ticket at the time of entry and paying the amount owing when leaving. This was expensive and could not be justified in the small car parks that Ace Parking operated.

137 Kevin English stated that the decision to establish Parking Infringements came about because they knew that there would be a considerable number of telephone calls which would consume a good deal of time. They also wanted to keep the two businesses separate. The name of the company was agreed upon by Kevin and James English. Kevin English stated that he wanted the name to accord with what the business would be doing, which was to patrol the Ace Parking car parks and protect its income. He considered that people parking in Ace Parking car parks without paying were doing so illegally. The "Parking Infringements" aspect of the name reflected the fact that people were parking illegally in Ace Parking car parks and the "Victoria" part of the name reflected the Victorian connection to the business.

138 He stated that James English settled the contents of the infringement notices that were to be issued on behalf of Parking Infringements. Kevin English accepted that many people would regard the notices put under the windscreens as "parking tickets" or even as a "parking fine" but in his interview he inconsistently persisted in contending that persons were not fined, rather they received an infringement notice.[9]

139 The collection of moneys from infringement notices for noncompliance was 100 per cent of Parking Infringements' income. He considered that the use of the words on the back of the tickets "Failure to do so may render you liable to prosecution" as being a "vague threat sort of thing". As to the "payment notice", Mr English was not able to explain why the word "offence" was used or why the reference "BR207(2)" was chosen.[10] Similarly, he was not able to explain why the word "penalty" was chosen for the "payment notices". As to the figure of $66 which was claimed on the notice, he stated that this figure was arrived at because it was the amount that a rival operator, Care Park, was charging on notices that it issued.[11] He stated that he and James English plagiarised most of Care Park's documents because they considered that that operator's documentation was being accepted without being challenged by patrons of its car parks.

140 Kevin English accepted in his interview that the references to "RR185(1)" and "in a permit zone/failure to display a valid permit" was a reference to Road Rule 185(1) in Road Rules Victoria. He was not able to describe any basis for Ace Parking asserting to any of its patrons that they may have committed an offence as Ace Parking had no authority to prosecute an alleged "offence". Significantly, he admitted that the representation of a "offence" was a false representation to the patrons of the parking business.[12] In addition, Kevin English stated that he was aware of the contents of the letters being sent out to persons who had received notices.

141 Kevin English stated that Parking Infringements used Hill Legal Lawyers and Consultants to collect on outstanding parking infringement notices but stated that Parking Infringements has never taken legal action to recover outstanding moneys from parking infringement notices. He doubts that instructions were ever given to Hill Legal to take action against anybody as it was not economically feasible to do so.

142 Kevin English stated that in 2008, a company, Data Base Consultants Australia was engaged to deal with the notices and correspondence and were paid $10 per notice to do so. A number of standard form template letters were prepared for Data Base Consultants Australia to use.

143 In late April 2009, the Director issued a notice under s 106I of the FTA to James English requiring him to give evidence to the Director's delegate. On 5 May 2009, James English attended at the Director's offices in compliance with that notice and gave evidence to the Director's delegate. In general terms, he confirmed the matters admitted to by his father in respect of the operations of Ace Parking and Parking Infringements. He confirmed that he is a beneficial shareholder in Ace Parking, together with his father Kevin, and his mother Carol Lanyon. He stated that Ace Parking has two fulltime staff in addition to his father and himself. He indicated to the Director's delegate that Ace Parking's business focuses on smaller car parks such as development sites where an owner may not be able to get a planning permit for some time or does not have the capital available to develop the site at that point. Ace Parking operates those types of sites for about 12 months to generate cash for the owners. Ace Parking never had ambitions to operate large car parks in the central business district of Melbourne.

144 James English, together with his father, decided upon the type of ticketing machines to be purchased for the Ace Parking business and chose the supplier of the tickets which was a company based in Sydney, Ticketing Manufacturers Australia Pty Ltd. A Melbourne based company, Computer Detection Systems Pty Ltd ("CDS"), was the supplier of the ticketing machines for Ace Parking's business. James English programmed the ticketing machines with Ace Parking's specific business details, such as the car park location which was printed on the tickets that were purchased. He considered the content on the back of the tickets to be purchased by customers to be appropriate for Ace Parking's business and that by displaying a set of terms and conditions at the entrance to the car parks, at the ticket machines and throughout the car park, that drivers who entered the car park agreed to park in accordance with all the terms and conditions.

145 Significantly, despite the terms of the documents and the correspondence generated, he stated that he did not believe that a driver's failure to comply with the displayed conditions could render drivers liable to prosecution or that they were committing an offence. Rather, he thought they would be in breach of contract.

146 After some time, James English provided Ticketing Manufacturers Australia Pty Ltd with the Ace Parking logo to produce a new form of ticket for parking vehicles in those Ace Parking car parks which used the CDS machines. He saw a mock up of the new form of tickets before they began to be used and had the opportunity to change the printing on the back of the new tickets to be produced when it started to use the new machines. Specifically, he prepared and approved of the use of the sentence "Failure to do so may render you to liquidated damages, prosecution or both" on the back of the tickets used by Ace Parking at some point after Ace Parking's business was up and running but before the incorporation of Parking Infringements on 1 August 2006. Ace Parking's business was incurring losses because some people were not paying for parking their cars. It was then the decision was taken to purchase the machines to issue what it referred to as "payment notices". At that point, machines were purchased from Data Base Consultants Australia (SARB Management Group Pty Ltd trading as Data Base Consultants Australia). Those machines are called PVA machines or devices. James English wanted the "payment notices" to have pre-printing on them and Ace Parking used TMA to produce the payment notices, as well as the tickets to be put on the dashboards.

147 When Ace Parking first started using ticket machines, the tickets purchased and required to be displayed on the dashboard were "shelf stock". After some time, but before September 2008, James English had the Ace Parking logo added to the tickets and modified the wording pre-printed on the back of the dashboard tickets. A further modification was made to those tickets in late April 2009. At the time of the modification, James English reviewed the text of the ticket as a whole and decided to add an extra sentence on the back to better accord, in his view, with Ace Parking's business. He still considered it appropriate for Ace Parking to say that the person could be liable to "liquidated damages, prosecution or both".

148 James English stated that he was entirely familiar with and at least partly responsible for creating the contents of the "payment notices" used by Parking Infringements. He stated that the process used by Parking Infringements "patrol officers" for issuing notices to clients was the same as that used for drivers getting "parking tickets" or "parking fines". He admitted that the use of the words "Road Safety Act 1996" in a notice issued by Parking Infringements is not "accurate". He did not consider that the word "offence" was an appropriate description in any "payment notice". He also admitted that the contents on the back of the "payment notice" was material that he provided to the ticket printers on behalf of Parking Infringements as part of the process of customising the form and content of the Parking Infringements "payment notice". Like his father, he stated that the figure of $66 set out on the "payment notice" was selected on the basis of what another business, Care Park, was charging as a penalty figure. He accepts that it is a regularly used term that, when people are given "parking fines", they would say they have been given a "parking ticket" and that having been issued with a "payment notice" could be likewise regarded as having been given a "parking ticket".

149 The lawyers for the defendants, Findlay Arthur Phillips, provided the Director with a detailed response to the request for information in compliance with the Director's request of December 2008. It identified 25 properties in respect of which it provided car parking facilities. The lawyers contended that Parking Infringements only pursued compliance with contractual obligations with customers of the car parks and set out details as to how it regarded such contracts to be constituted. The lawyers asserted that the amount demanded by the notices that were issued constituted the car park operators' and Parking Infringements reasonable preestimate of any unpaid parking fee or loss of revenue, together with their combined costs of patrolling the car park in question and enforcing the contract between the car park operator and the customer.

150 The intimate involvement of James English in arranging for the printing of the parking tickets used by Ace Parking and the infringement notices issued by Parking Infringements is confirmed by an affidavit filed by the Director of Gregory Spice. Mr Spice is employed by TMA Australia Pty Ltd. That company provides printed materials used in the car parking industry and supplies a variety of printed material, including tickets dispensed by parking machines and infringement notices, including infringement notices dispensed by handheld ticket machines. TMA employs a range of persons, including graphic designers who are available to assist customers and potential customers to design printed materials to be manufactured by the company. It was in the course of that employment that Mr Spice had dealings with James English. Those dealings extended from August 2003 until January 2010, and during that period of time Mr Spice and Mr English were in regular contact with each other by email, telephone and facsimile. Mr Spice also met Kevin English at meetings and he was introduced as a director of Ace Parking.

151 Over the period of time of their trading relationship, TMA supplied various types of tickets. These included, from December 2006, tickets customised to include Ace Parking's logo and text. That logo, for inclusion on the "front" of the proposed Ace Parking ticket, was supplied by James English by email. At about the same time, there were discussions regarding the text of the words to be included on the "back" of the Ace Parking ticket. Mr Spice sent James English three samples that TMA had produced for other persons involved in the parking industry, including two local councils, to assist him in formulating the text to be included on the back of the ticket. James English responded with suggestions for the amendments of that text which were incorporated into artwork proofs. The artwork proof was based on the sample of a ticket produced by TMA for Wilson Parking WA but with the Ace Parking logo included in all references to Wilson Parking WA removed. This in turn was amended by James English by handwritten alterations to the terms on the back of the proposed ticket. Further changes were made to the Ace Parking ticket in about May 2008.

152 A similar situation prevailed in respect of the production by TMA of payment notices containing the name "Parking Infringements Victoria". James English sent to Mr Spice by email copies of infringement notices prepared by another supplier to Ace Parking and requested that TMA quote on the manufacture and supply of a similar product. TMA produced artwork proofs of the proposed Parking Infringements Victoria payment notice which was sent to James English by email in early September 2006. This in turn was the subject of amendment and ultimately production occurred of those payment notices containing the name Parking Infringements Victoria Pty Ltd and later by its subsequent name, Parking Patrols (Vic) Pty Ltd. The payment notices were subsequently amended at the direction of James English in September and October 2008 and June 2009. On each occasion, James English approved the amendment to the payment notices. The last order of material to TMA occurred on 16 March 2010 when a request was made for the supply of a number of rolls of parking tickets by James English.

153 The Director also relied upon an affidavit of Vince Barbante. Mr Barbante was an employee of the Roads Corporation. In that role, he was familiar with and routinely used the Vehicle Registration Information System ("VRIS") which is an electronic database maintained by VicRoads to store the records and systems by which VicRoads records its business operations and statutory functions. This vehicle registration information system includes a register of motor vehicles maintained by VicRoads under its statutory obligations. As part of his functions, Mr Barbante has occasion to have access to those records in response to orders of courts, including, in particular, the Magistrates' Court of Victoria. The orders direct VicRoads to produce details of any matters recorded in its Register of Motor Vehicles.

154 Mr Barbante was aware that during 2007, persons were obtaining orders from the Magistrates' Court of Victoria for production of information contained on the VRIS in respect to the details of registered operators of motor vehicles. Amongst those persons was Ace Parking. In July 2007, a request was made to VicRoads by solicitors acting on behalf of Ace Parking for details of the owners of motor vehicles as at particular dates. In March or early April 2008, Mr Barbante had a telephone conversation with James English, who identified himself as the operations and development manager at Ace Parking in respect of the difficulties being experienced by Ace Parking and its solicitors in delivering electronic requests to VicRoads for information on the VicRoads database. Ultimately, those difficulties were overcome and over the period from May 2008 to June 2010 a number of requests were received by Mr Barbante to provide information concerning the registered operator details for motor vehicles identified in schedules sent to him by representatives of Ace Parking. From the period May 2008 to June 2010, Mr Barbante processed 21 separate requests for such information, involving 7,787 motor vehicles.

155 The information provided by VicRoads would be used by Parking Infringements and/or its solicitors to correspond with persons who had not met the demand on the parking tickets for payment. The evidence of Mr Barbante illustrates the volume of transactions by which the customers of the car parks were pursued for nonpayment of payment notices issued by Parking Infringements.

156 It is appropriate to make some observations in respect of the statutory provisions which are sought to be invoked in these circumstances. The conduct which is the subject of the Director's proceeding must occur "in trade or commerce". In my view, there is no doubt at all that the conduct complained of and which is particularised in the originating motion has occurred in the context of trade or commerce as that expression has been interpreted, for example, by the High Court of Australia in Concrete Constructions (New South Wales) Pty Ltd v Nelson[13] (which involved proceedings under the TPA).

157 As to the principles to be applied in determining whether there has been misleading or deceptive conduct and false representations pursuant to ss 9 and 12 of the FTA as is alleged here, there are a number of principles which have emerged from the authorities. In the context of the present application, the more pertinent principles (chiefly to be derived from authorities which deal with the interpretation of very similar provisions of the then TPA are as follows:

(a) the provisions (i.e. s 52 of the TPA and s 9 of the FTA) are not confined to conduct that is intended to mislead or deceive;[14]

(b) one meaning the words "mislead" or "deceive" share in common is to "lead into error";[15]

(c) a person who has acted honestly and reasonably may still be liable to be restrained by injunction and to pay damages if their conduct has in fact misled or deceived or is likely to mislead or deceive;[16]

(d) the words "likely to mislead or deceive" make it clear that it is unnecessary to prove that the conduct in question actually deceived or misled anyone;[17]

(e) the Court must decide objectively for itself whether the conduct is misleading or deceptive or likely to mislead or deceive;[18]

(f) evidence that members of the public have actually been misled is admissible but not necessary or conclusive;[19]

(g) "false" has been held by the High Court in Murphy v Farmer as being capable of having different meanings depending on the context in which it is used. In Murphy, the Court said: "False" could be used with its primary meaning as "erroneous", "untrue", "wrong" or "incorrect" or its secondary meaning as "purposely untrue or deceitful".

158 An illustration of the application of s 52 of the TPA in a case very similar to the present is the decision of Mansfield J in Corporation of the City of Adelaide v Adelaide City Fines Pty Ltd and Another.[20] In that case, Mansfield J upheld the claim that six versions of Adelaide City Fines' "parking tickets" represented to a significant and reasonable class of consumers that they were issued or authorised by the Adelaide City Council or that Adelaide City Fines was in some way associated with the Adelaide City Council. Adelaide City Fines was held to have represented that the tickets imposed a fine or a penalty imposed by law which could lead to a criminal prosecution rather than merely being a claim for a contractual debt. Mansfield J held that such representations were misleading and deceptive in contravention of s 52 of the TPA.

159 I consider that on the evidence, the Director has established that the defendants have committed breaches of ss 9 and 12 of the FTA. In particular, the defendants have, in the course of trade or commerce, offended the provisions of s 12(e), (f) and (k) and the more general provision contained in s 12(n).

160 The representations as to future matters and "reasonable grounds" in the context of s 4 of the FTA are the subject of the allegations made in paragraphs 1.3(b)(i), 1.4(b)(i), 2.2(b)(i), 2.3(b)(i) of the originating motion. In order for the defendants to establish "reasonable grounds" within the meaning of s 4 (for which the they bear the onus) where there is a representation as to a future matter, the representor (i.e. the defendants in this case) must demonstrate:

(a) some facts or circumstances;

(b) existing at the time of the representation;

(c) on which the representor in fact relied;

(d) which are objectively reasonable; and

(e) which support the representation made.

161 Of course, in this proceeding the defendants have filed no evidence, have made no submissions in opposition to the Director's contentions and have made no attempt to establish that the representations as to future matters were made with reasonable grounds. As such, the representations as to future matters mentioned are deemed to be misleading by operation of s 4(1).

162 I now turn to the harassment and coercion provisions of s 21 of the FTA which are the subject of paragraph 3 of the originating motion. In Australian Competition and Consumer Commission v McCaskey & Anor,[21] French J (as he then was) considered the equivalent provisions of the TPA in circumstances where a debt collector had incorrectly asserted that an alleged debtor was liable to pay a debt. In the context of the expression undue coercion, his Honour observed:[22]

Where the demand includes content which does not serve legitimate purposes of reminding the debtor of the obligation and threatening legal proceedings for recovery but is calculated otherwise to intimidate or threaten the debtor, then the coercion may be undue. So if a threat is made of criminal proceedings, or of the immediate seizure and sale of house and property, a remedy not available in the absence of retention of title or some form of security, the coercion is likely to be seen as undue.

163 In these circumstances, the threat of taking customers of the car parks to court was not a remedy available to the defendants. The pursuit of those customers constitutes in my view undue coercion within the meaning of s 21. In particular, I consider that the evidence establishes breaches of the following provisions of s 21(2). First, the evidence of the several complainants establishes that, in breach of s 21(2)(a), there was use of documents resembling an official document to "mislead a person in connection with a debt or the consequences of not paying a debt" by the issue of the payment notices. In a similar way, there was a breach of s 21(2)(b), that is, the making a representation to a debtor about the consequences of not paying a debt or about the method of recovering a debt; this was constituted by the representation that the matter would be pursued in court. Finally, I consider that there has been a breach of s 21(2)(f), that is, use of misleading letterhead. In my opinion, The get-up and appearance of the documents issued were designed to mislead the recipients into believing that there was an official connection in order to induce the recipients to make a payment. I consider that the Director has made out the infringements of s 21 which are particularised in paragraph 3 of the originating motion.

164 In paragraph 7 of the originating motion, the Director seeks an adverse publicity order under s 153(1) of the FTA. The originating motion seeks an order that such notice be published within the first 30 pages of the Herald Sun newspaper and The Age newspaper and specifies the size and form of the notice. The proposed content of the notice is annexed to the originating motion. In Director of Consumer Affairs Victoria v DW International Trading Pty Ltd,[23] Dixon J stated: [24]

1. Section 149A of the Act empowers the Court to make orders that may bring the outcome of the proceedings to the attention of both consumers and traders. Such orders broaden the scope of protection afforded by the legislative scheme. There are at least three important educative roles served by publicly identifying the way in which the particular contravener behaved and has had to change its conduct. Publicity orders inform of past conduct. Other consumers may be unaware of the risks created by purchasing the particular toys and a publicity order may be effective in warning of such risks, particularly where other means of contacting other consumers of the offending items is impractical. Other traders may import the same toys. Publicity orders may put the public on inquiry about the lawfulness of future conduct by the contravener or other traders. In that way publicity orders may assist in developing an environment of self-regulated compliance in a particular industry or area of commercial activity. Publicity orders may assist in enforcing injunctive orders and preventing repetition of the contravening conduct. [See generally ACCC -v- Real Estate Institute (WA) Inc [1999] FCA 18; (1999) 95 FCR 114 at 132 to 133 especially [48] to [50]; and ACCC -v- McCaskey [2000] FCA 1037; (2000) 104 FCR 8 at 30 [60] to [62].] At a broader level, traders, mindful of commercial reputation, may be deterred from like conduct upon becoming aware of the outcome in a particular enforcement case. More generally, such orders may put the public on inquiry about safety issues with respect to children's toys and in this way contribute to achieving the purposes of the regulatory scheme.
2. Punitive advertising orders cannot be made under s.149A. Such orders are not made for the benefit of the regulator, to announce a "win". They differ from publication or other orders for corrective purposes. [In the sense considered, for example, in Janssen Pharmaceutical Pty Ltd -v- Pfizer Pty Ltd (1985) 6 IPR 227 (1986) 6 ATPR 40-654.]

165 I consider that it is appropriate in these circumstances to make an adverse publicity order of the type sought. In the plaintiff's written submissions, the form of advertisement was modified slightly and the defendants have consented to an order that they place advertisements in the revised form. It is appropriate that the public be informed of the making of these orders, as many people may be confronted by the very same situation as those experienced by the complainants in this application. As Dixon J points out, orders of this type may put consumers on inquiry about the lawfulness of conduct engaged in the future, not only by the defendants but, in the present context, by other car park operators. This may assist in developing what Dixon J describes as "an environment of self-regulated compliance in a particular industry", in the privately operated car park industry.

166 The Director also seeks an order pursuant to ss 149A and 158 of the FTA that the defendants pay to the persons listed in Annexure A to the originating motion what are described as refunds, compensation, or the amount of loss or damage suffered by them as a result of the contraventions of the Act. The persons identified in the annexure are the complainants who have sworn affidavits in this proceeding. In the Director's written submissions, it is indicated that the Director and the defendants have now agreed that such award be $300 per person (although the originating motion made varying claim for each complainant).

167 In Cousins v Merringtons Pty Ltd (No 2),[25] Hansen J considered that it was open to the Director to make claims for general and aggravated damages on behalf of the complainants in a similar type of application. He observed that if any such damages are to be awarded they should be in a modest sum only. He stated at [71]:

I agree with the plaintiff's counsel that if any damages are to be awarded they should be in a modest sum only. All complainants have received a full refund of amounts expended in their transaction with the defendant. The refunds were made without interest and it was not submitted that interest should be ordered. And, without downplaying the significance for the individual complainants of their expenditure it yet is the fact that the amounts were relatively small. And, also without downplaying the annoyance and inconvenience occasioned to them as a result of the defendants' conduct, the extent of which varied considerably between the complaints, it is important to retain an overall perspective. Having considered the circumstances pertaining to each complainant I am of the view that it is just and appropriate that the defendants pay to the plaintiff for each of the [identified complainants] the amount of $300 as general damages. I do not propose to order aggravated damages. If aggravated damages were to be considered I agree with the plaintiff's counsel as to the complainants in respect of whom such damages might be considered. I consider however that general damages indicated are sufficient and just compensation without ordering an amount of aggravated damages in favour of those complainants.

168 The conduct of the defendants, in addition to illegally demanding payments, was undoubtedly the source of inconvenience and anxiety to the persons who were the subject of the demands. Otherwise law abiding citizens were accused, without any legal basis, that they had committed "offences" for which they were liable to pay "penalties". The exact circumstances of the various complainants and the level of inconvenience and to some, indignity and anxiety, to which they were put varies somewhat and some of them might, on a more detailed assessment, be considered to be entitled to more compensation. However, I am reluctant to interfere in the agreement struck between the defendants and the Director as to the amount sought. As the Director submitted, the authorities demonstrate that when courts are asked to make final orders by consent, the Court must strike a balance between the public interest involved in a negotiated resolution of cases and the public interest in the proper exercise of powers by the Court in carrying out its public function in making the orders sought. The Court is not involved in mediating or settling the case and it is not the Court's duty to determine whether the figure arrived at is the best possible settlement that could have been obtained. Rather, the Court is determining whether the settlement achieved is within the reaches of the public interest. In relation to proposed consent orders, the Court will not simply substitute its own view of the orders which it would have made if those proffered fall within the range of an appropriate disposition in the case.[26]

169 The parties have also agreed that the defendants are to make a contribution to the plaintiff's costs in the sum of $12,000 within 30 days and I will make such an order.

170 I will make orders and declarations in terms of the Director's proposed minutes of consent order submitted at the hearing of this matter.

[Where there is reference in this annexure to the "complainants identified in Annexure A below", this is a reference to the several complainants whose evidence is referred to in paragraphs 38 to 120 of the reasons for judgment]

Misleading or deceptive conduct - Section 9 of the Act

1. In the period about March 2007 to about March 2010 ("the period"), each of Parking Patrols (Vic) Pty Ltd (formerly known as Parking Infringements Victoria Pty Ltd) (ACN 121 026 739) ("Parking Infringements Victoria"), Ace Parking Pty Ltd (ACN 082 604 840) ("Ace Parking"), Kevin John English, and James John English have, in trade or commerce, engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of section 9 of the Act, by reason of one or more of the matters set out below:
   • 1.1 using or issuing, or causing, authorising, or permitting to be used or issued, tickets, notices, demands for payment, and correspondence to the owners or drivers of cars (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in private car parking premises operated or run by Ace Parking (such premises herein referred to as "Ace Parking car park") where such tickets, notices, demands for payment, or correspondence contained or used one or more of the following:
     • (a) a design, layout, get-up, size, or shape which is the same as, or similar to, parking tickets issued or correspondence sent by Government or official authorities in respect of alleged public parking offences;
     • (b) references to terms such as "offence", "offence date", "penalty", "breach", "code", "the relevant regulations", "RR185(1)", "BR207(2)", "fines", and "Ticket Number";
     • (c) a map of the State of Victoria;
     • (d) the term "Parking Infringements Victoria" (sometimes accompanied by "Pty Ltd" in fine print);
     • (e) references to "VicRoads" and the "Road Safety Act 1986" or "... you have expressly consented to us obtaining the Vehicle Registration Information from VicRoads or any other responsible authority under the Road Safety Act 1986";
     • (f) wording, namely:
       • (i) "RR185(1) in a permit zone / Fail to display a valid permit"; and
       • (ii) "BR207(2)"; "Fail to pay fee / display a valid ticket and obey instructions on sign / meter / ticket etc"; and "(NO VALID TICKET)" -

that is the same as, or very similar to, that used in the Road Safety (General) Regulations 1999 (Vic), to describe regulatory contraventions or offences -

which have the effect, or are likely to have the effect, of misleading or deceiving the recipients of such tickets, notices, demands, and correspondence as to the basis of, or the nature of, the tickets, notices, demands for payment or correspondence and Ace Parking's or Parking Infringement Victoria's authority to use or issue such tickets or notices and to pursue such demands for payment;

1.2 using or issuing, or causing, authorising, or permitting to be used or issued, documents which contained representations to the owners or drivers of cars (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in an Ace Parking car park that:

• (a) they may be "prosecuted" for failing to comply with requirements set out in one or more classes of the car parking documents;
• (b) they may be subject to "fines" for failing to comply with requirements set out in one or more classes of the car parking documents or "the relevant regulations";
• (c) they have "breached":
  • (i) "BR207(2) Fail to pay fee / display a valid ticket and obey instructions on sign / meter / ticket etc (NO VALID TICKET)"; or
  • (ii) "RR185(1) In a permit zone / Fail to display a valid permit";
• (d) they have committed an "offence";
• (e) they are liable to a "penalty" for, or in respect of, the alleged "breach" referred to in paragraph 1.2(c) above;
• (f) if the registered owner was not the driver of the car when it was parked in an Ace Parking car park, the registered owner is required to provide Parking Infringements Victoria with the name and address of the driver in a Statutory Declaration form. Otherwise, the registered owner of the car becomes liable for the amounts owing or costs -

in circumstances where there existed no, or no reasonable, basis or justification for such representations, because the owner or driver of such cars, by parking the car in the Ace Parking car park, have not committed the regulatory or other offences alleged and are, therefore, not liable to the imposition of a penalty, fine or prosecution. Further, the registered owner of the car has no such obligation to either Ace Parking or Parking Infringements Victoria, nor any such liability to pay the amounts owing or costs;

1.3 (a) representing that a failure by the driver of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in an Ace Parking car park to display on the dashboard of the car a parking ticket with the expiry time visible from the outside of the car could render the driver liable to prosecution (criminal proceedings) for a parking offence;

(b) (i) such representation is a representation about a future matter for the purposes of section 4 of the Act and the Defendants did not have reasonable grounds for making the representation; or

(ii) in fact, a driver of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in the Ace Parking car park was not liable to any prosecution (criminal proceedings) for failing to properly display a ticket on the dashboard of the car;

1.4 (a) representing that a failure by the driver or owner of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in an Ace Parking car park to:

• (i) display on the dashboard of the car a parking ticket with the expiry time visible from the outside of the car; or
• (ii) correctly park the car whilst using an Ace Parking car park; or
• (iii) park in accordance with "the relevant regulations" -

(b) (i) such representation is a representation about a future matter for the purposes of section 4 of the Act and the Defendants did not have reasonable grounds for making the representation; or

(ii) in fact, the driver or owner of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in an Ace Parking car park was not liable to a fine for failing to do any of those things;

1.5 (a) representing that official laws (by way of regulations) apply to the parking of a car by a driver or owner of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in an Ace Parking car park;

(b) whereas, in fact, Ace Parking car parks are private property where official laws (by way of regulations) for the parking of cars do not apply;

1.6 (a) representing that by entering and parking a car in an Ace Parking car park, a driver or owner of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) had entered into a contract with Ace Parking;

(b) whereas, in fact, by simply entering and parking a car, a driver or owner of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) had not entered into a contract with Ace Parking because of one or more of the following:

(i) there was no intention to create legal relations;

(ii) there was no offer;

(iii) there was no acceptance of an offer;

(iv) there was no consideration;

1.7 (a) representing that by entering and parking a car in an Ace Parking car park, a driver of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) had entered into a contract with Ace Parking and the terms and conditions of that contract included all the terms and conditions set out on notices displayed at the car park;

(b) whereas, in fact, by entering and parking a car in an Ace Parking car park a driver of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) had either:

(i) not entered into a contract with Ace Parking; or

(ii) the contract that the driver (including, but not limited to, one or more of the complainants identified in Annexure A below) entered into with Ace Parking did not contain all of the terms and conditions set out on notices displayed at the Ace Parking car park because:

• (A) the driver did not expressly agree to such terms and conditions; and
• (B) the driver may or may not have either seen or read such terms and conditions and Ace Parking did not adequately bring all the terms and conditions (particularly, the onerous terms and conditions) to the driver's attention. In the circumstances, there was, and is, no valid basis for implying all such terms and conditions into any contract between the driver (including, but not limited to, one or more of the complainants identified in Annexure A below) and Ace Parking;

1.8 (a) representing that by entering and parking a car in an Ace Parking car park and paying a fee to purchase a ticket and displaying that ticket on the dashboard of the car, a driver of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) had entered into a contract with Ace Parking and the terms and conditions of that contract included all the terms and conditions set out on notices displayed at the Ace Parking car park;

(b) whereas, in fact, in the circumstances set out in paragraph 1.8(a) above, a driver of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) had either:

(i) not entered into a contract with Ace Parking; or

(ii) the contract that the driver (including, but not limited to, one or more of the complainants identified in Annexure A below) entered into with Ace Parking did not contain all of the terms and conditions set out on notices displayed at the Ace Parking car park because:

• (A) the driver did not expressly agree to such terms and conditions; and
• (B) the driver may or may not have either seen or read such terms and conditions and Ace Parking did not adequately bring all the terms and conditions (particularly, the onerous terms and conditions) to the driver's attention. In the circumstances, there was, and is, no valid basis for implying all such terms and conditions into any contract between the driver (including, but not limited to, one or more of the complainants identified in Annexure A below) and Ace Parking;

1.9 (a) representing that the entry and parking of a car in an Ace Parking car park, by a person other than the owner of the car, created, either:

• (i) a contract between the owner of the car and Ace Parking; or
• (ii) a contract between the owner of the car and Ace Parking and the terms and conditions of the contract included all the terms and conditions set out on notices displayed at the car park; or
• (iii) some other legal obligation requiring:

(A) the owner to provide to Ace Parking or Parking Infringements Victoria the identity and contact details of the driver of the car when it was parked in an Ace Parking car park; or

(B) the owner to become personally responsible for paying to Ace Parking or Parking Infringements Victoria fees, charges, or penalties in respect of the owner's car being parked in an Ace Parking car park;

(b) whereas, in fact, in the circumstances referred to in paragraph 1.9(a) above:

(i) there was, and is, no contract between the owner of the car and Ace Parking because of one or more of the following:

(A) There were no dealings between the owner of the car and Ace Parking;

(B) There was no intention to create legal relations;

(F) The owner would not, or may not, know when his or her car was parked in an Ace Parking car park or the content of any of the terms and conditions displayed on notices at an Ace Parking car park;

(ii) there was, and is, no legal obligation owed by the owner of the car to either provide the identity and contact details of the driver or to be responsible for paying to Ace Parking or Parking Infringements Victoria any fees, charges, or penalties in respect of the owner's car being parked in an Ace Parking car park.

False or misleading representations - Section 12 of the Act

1. Each of Parking Infringements Victoria, Ace Parking, Kevin John English, and James John English have, in trade or commerce, in connection with the supply, possible supply, or promotion of the supply or use of goods or services, namely the operation of certain private car parking premises in Victoria and the provision of tickets or car parking services, or both, by making representations, in the period, to drivers or owners (including, but not limited to, one or more of the complainants identified in Annexure A below) that:
   • 2.1 (a) they may be "prosecuted" for failing to comply with requirements set out in one or more classes of the car parking documents;
     • (b) they may be subject to "fines" for failing to comply with requirements set out in one or more classes of the car parking documents or "the relevant regulations";
     • (c) they have "breached":
       • (i) "BR207(2) Fail to pay fee / display a valid ticket and obey instructions on sign / meter / ticket etc (NO VALID TICKET)"; or
       • (ii) "RR185(1) In a permit zone / Fail to display a valid permit";
     • (d) they have committed an "offence";
     • (e) they are liable to a "penalty" for, or in respect of, the alleged "breach" referred to in paragraph 1.2(c) above -

in circumstances where there existed no, or no reasonable, basis or justification for such representations, because the owner or driver of such cars (including, but not limited to, one or more of the complainants identified in Annexure A below), by parking the car in the Ace Parking car park, has not committed the regulatory or other offences alleged and is, therefore, not liable to the imposition of a penalty, fine or prosecution;

2.2 (a) a failure by the driver of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in an Ace Parking car park to display on the dashboard of the car a parking ticket with the expiry time visible from the outside of the car could render the driver liable to criminal proceedings for a parking offence;

(b) (i) such representation is a representation about a future matter for the purposes of section 4 of the Act and the Defendants did not have reasonable grounds for making the representation; or

(ii) in fact, a driver of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in the Ace Parking car park was not liable to any criminal proceedings for failing to properly display a ticket on the dashboard of the car;

2.3 (a) a failure by the driver or owner of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in an Ace Parking car park to:

• (i) display on the dashboard of the car a parking ticket with the expiry time visible from the outside of the car; or
• (ii) correctly park the car whilst using an Ace Parking car park;
• (iii) park in accordance with "the relevant regulations" -

(b) (i) such representation is a representation about a future matter for the purposes of section 4 of the Act and the Defendants did not have reasonable grounds for making the representation; or

(ii) in fact, the driver or owner of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in an Ace Parking car park was not liable to a fine for failing to do any of those things;

2.4 (a) official laws (by way of regulations) apply to the parking of a car by a driver or owner of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in an Ace Parking car park;

(b) whereas, in fact, Ace Parking car parks are private property where official laws (by way of regulations) for the parking of cars do not apply;

2.5 (a) by entering and parking a car in an Ace Parking car park, a driver of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) had entered into a contract with Ace Parking;

(b) whereas, in fact, by simply entering and parking a car, a driver of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) had not entered into a contract with Ace Parking because of one or more of the following:

(i) there was no intention to create legal relations;

(ii) there was no offer;

(iii) there was no acceptance of an offer;

(iv) there was no consideration;

2.6 (a) by entering and parking a car in an Ace Parking car park, a driver of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) had entered into a contract with Ace Parking and the terms and conditions of that contract included all the terms and conditions set out on notices displayed at the car park;

(b) whereas, in fact, by entering and parking a car in an Ace Parking car park a driver of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) had either:

(i) not entered into a contract with Ace Parking; or

(ii) the contract that the driver (including, but not limited to, one or more of the complainants identified in Annexure A below) entered into with Ace Parking did not contain all of the terms and conditions set out on notices displayed at the Ace Parking car park because:

• (A) the driver of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) did not expressly agree to such terms and conditions; and
• (B) may or may not have either seen or read such terms and conditions and Ace Parking did not adequately bring all the terms and conditions (particularly, the onerous terms and conditions) to the driver's attention. In the circumstances, there was, and is, no valid basis for implying all such terms and conditions into any contract between the driver (including, but not limited to, one or more of the complainants identified in Annexure A below) and Ace Parking.

2.7 (a) by entering and parking a car in an Ace Parking car park and paying a fee to purchase a ticket and displaying that ticket on the dashboard of the car, a driver of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) had entered into a contract with Ace Parking and the terms and conditions of that contract included all the terms and conditions set out on notices displayed at the Ace Parking car park;

(b) whereas, in fact, in the circumstances set out in paragraph 2.7(a) above, a driver of a car (including, but not limited to, one or more of the complainants identified in Annexure A below) had either:

(i) not entered into a contract with Ace Parking; or

(ii) the contract that the driver (including, but not limited to, one or more of the complainants identified in Annexure A below) entered into with Ace Parking did not contain all of the terms and conditions set out on notices displayed at the Ace Parking car park because:

• (A) the driver did not expressly agree to such terms and conditions; and
• (B) the driver may or may not have either seen or read such terms and conditions and Ace Parking did not adequately bring all the terms and conditions (particularly, the onerous terms and conditions) to the driver's attention. In the circumstances, there was, and is, no valid basis for implying all such terms and conditions into any contract between the driver (including, but not limited to, one or more of the complainants identified in Annexure A below) and Ace Parking -

(I) concerning the existence, exclusion, or effect of a condition, right or remedy that are false or misleading contrary to sub-section 12 (k) of the Act;

(II) that the services have sponsorship or approval they do not have contrary to

sub-section 12(e) of the Act;

(III) that Parking Infringements Victoria, or Ace Parking, or both, have a sponsorship, approval, or affiliation that the company does, or companies do, not have contrary to sub-section 12(f) of the Act;

(IV) that are false or misleading in a material particular contrary to sub-section 12(n) of the Act.

Harassment and coercion - Section 21 of the Act

1. Parking Infringements Victoria, Ace Parking, Kevin John English, and James John English, in the period and in connection with the supply, or possible supply, of goods or services to users of the car parking services (including, but not limited to, one or more of the complainants identified in Annexure A below) or the payment for goods or services, namely payment by users of the car parking services (including, but not limited to, one or more of the complainants identified in Annexure A below) for the operation of Ace Parking car parks and the provision of tickets or car parking services, or both, used undue harassment or coercion by:
   • 3.1 making false or misleading representations, to drivers or owners of cars (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in an Ace Parking car park, being one or more of the following:
     • (a) they may be "prosecuted" for failing to comply with requirements set out in one or more classes of the car parking documents;
     • (b) they may be subject to "fines" for failing to comply with requirements set out in one or more classes of car parking documents or "the relevant regulations";
     • (c) they have "breached":
       • (i) "BR207(2) Fail to pay fee / display a valid ticket and obey instructions on sign / meter / ticket etc (NO VALID TICKET)"; or
       • (ii) "RR185(1) In a permit zone / Fail to display a valid permit";
     • (d) they have committed an "offence";
     • (e) they are liable to a "penalty" for, or in respect of, the alleged "breach" referred to in paragraph 3.1(c) above -

to the owners or drivers of cars (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in the Ace Parking car parks about the consequences of not paying requests or demands for payment;

3.2 using documents presented as, modelled upon, or resembling official documents to mislead owners or drivers of cars (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in an Ace Parking car park, in connection with tickets, notices, requests or demands for payment, or the consequences of not paying such requests or demands for payment;

3.3 unfairly sending, or causing to be sent, letters of demand to the owners or drivers of cars (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in an Ace Parking car park regarding requests or demands for payment;

3.4 threatening the owners or drivers of cars (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in an Ace Parking car park that, if they did not pay the amount of money demanded or requested by the due date, the owners or drivers (including, but not limited to, one or more of the complainants identified in Annexure A below) would be lawfully obliged to pay a higher amount when that was not the case;

3.5 unfairly threatening the owners or drivers of cars (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in an Ace Parking car park with the institution of legal proceedings -

1. An order, pursuant to section 149 of the Act, that Parking Infringements Victoria, Ace Parking, Kevin John English, and James John English, either directly or by their servants or agents or otherwise howsoever, be restrained from:
   • 4.1 using or issuing, or causing, authorising, or permitting to be used or issued, tickets, notices, demands for payment, and correspondence to the owners or drivers of cars parked in a private car park where such tickets, notices, demands for payment, or correspondence contain or use one or more of the following:
     • (a) a design, layout, get-up, size, or shape which is the same as, or similar to, parking tickets issued or correspondence sent by Government or official authorities in respect of alleged public parking offences;
     • (b) references to terms such as "offence"; "offence date"; "penalty"; "breach"; "code"; "the relevant regulations"; "RR185(1)"; "BR207(2)"; "fines"; and "Ticket Number";
     • (c) a map of the State of Victoria;
     • (d) the term "Parking Infringements Victoria";
     • (e) references to "VicRoads" and the "Road Safety Act 1986" or "... you have expressly consented to us obtaining the Vehicle Registration Information from VicRoads or any other responsible authority under the Road Safety Act 1986";
     • (f) wording, - such as: "BR207(2)"; "Fail to pay fee / display a valid ticket and obey instructions on sign / meter / ticket etc"; and "(NO VALID TICKET)" - that is the same as, or very similar to, that used in the Road Safety (General) Regulations 1999 (Vic), to describe regulatory contraventions or offences;
   • 4.2 using or issuing, or causing, authorising, or permitting to be used or issued, documents which contain representations to the owners or drivers of cars parked in a private car park to the effect that they may be prosecuted, liable to a penalty or fine, have breached regulations, or committed an offence;
   • 4.3 representing or asserting that a failure by the driver or owner of a car parked in a private car park to comply with directions from the private car park operator could render the driver or owner liable to a fine, penalty or prosecution;
   • 4.4 representing or asserting that official laws (by way of regulations) apply to the parking of a car by a driver or owner of a car parked in a private car park;
   • 4.5 representing or asserting that the driver or owner of a car parked in a private car park has entered into a contract with the private car park operator when that is not the case;
   • 4.6 representing or asserting that the driver or owner of a car parked in a private car park has entered into a contract with the private car park operator, which contains particular terms, when that is not the case;
   • 4.7 in connection with the supply, or possible supply, of goods or services or the payment for goods or services:
     • (a) making false or misleading representations, to drivers or owners of cars parked in a private car park about the consequences of not paying requests or demands for payment;
     • (b) using documents presented as, modelled upon, or resembling official documents to mislead owners or drivers of cars parked in a private car park;
     • (c) unfairly sending, or causing to be sent, letters of demand to the owners or drivers of cars parked in a private car park regarding requests or demands for payment;
     • (d) threatening the owners or drivers of cars parked in a private car park that, if they do not pay the amount of money demanded or requested by the due date, the owners or drivers would be lawfully obliged to pay a higher amount when that is not the case;
     • (e) unfairly threatening the owners or drivers of cars parked in a private car park with the institution of legal proceedings.

Misleading or deceptive conduct - Section 9 of the Act[27]

1. In the period, Ace Parking has, in trade or commerce, engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of section 9 of the Act by reason of one or more of the matters set out below:
   • 5.1 (a) representing that by the entering and parking of a car by a driver of the car into an Ace Parking car park, Ace Parking:
     • (i) had a general lien over the car; and
     • (ii) could retain the car until the driver produced a valid pass or authority and paid all outstanding charges;

(b) (i) such representation is a representation about a future matter for the purposes of section 4 of the Act and the Defendants did not have reasonable grounds for making the representation; or

(ii) in fact, the circumstances set out in paragraph 8.1(a) above did not create a general lien over the car which may or may not have been owned by the driver of the car and did not enable Ace Parking to retain the car as asserted or at all;

5.2 (a) representing that by the entering and parking of a car by a driver of the car into an Ace Parking car park and the entry into a contract for car parking services between the driver of the car and Ace Parking, Ace Parking was able to claim that:

• (i) it had a general lien over the car; and
• (ii) it could retain the car until the driver produced a valid pass or authority and paid all outstanding charges;

(b) (i) such representation is a representation about a future matter for the purposes of section 4 of the Act and the Defendants did not have reasonable grounds for making the representation; or

(ii) in fact, the circumstances set out in paragraph 8.2(a) above did not create a general lien over the car which may or may not have been owned by the driver of the car and did not enable Ace Parking to retain the car as asserted or at all.

[1] In these reasons, I shall refer to the documents produced by Parking Infringements as "infringement notices" but as these reasons reveal and the defendants accept , they do not have the status of a traffic infringement notice issued by the police or other legally authorized agency such as a municipal council.

[2] Director of Consumer Affairs Victoria v DW International Trading Pty Ltd and anor [2010] VSC 515, [4] (Dixon J); Director of Consumer Affairs Victoria v Top Light Trading Pty Ltd [2011] VSC 408, [3] (Williams J).

[4] i.e.the current name of the first defendant

[8] (1991) 30 FCR 511.

[9] Transcript of Interview conducted on 22 April 2009 of Kevin English by Director's delegate (Exhibit PJH-5 to the affidavit of Peter James Hiland sworn 6 August 2010), 47-48.

[13] [1990] HCA 17; (1990) 169 CLR 594.

[14] Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191, 197.

[18] Taco Company of Australia Inc and Another v Taco Bell Pty Ltd and Others [1982] FCA 136; (1982) 42 ALR 177, 202.

[20] [2009] FCA 132; (2009) 253 ALR 417.

[21] [2000] FCA 1037; 183 ALR 159.

[23] [2010] VSC 515 ("DW International Trading").

[24] DW International Trading [2010] VSC 515, [46]-[47].

[25] [2008] VSC 340.

[26] ACCC -v- Real Estate Institute of Western Australia and Others [1999] FCA 1387; (1999) 161 ALR 79, ACCC -v- Real Estate Institute of Western Australia and Others [1999] FCA 1387; (1999) 95 FCR 114 (French J); ACCC -v- Target Australia Pty Ltd [2001] FCA 1326, [24] (Lee J); NW Frozen Foods Pty Ltd -v- ACCC [1996] FCA 1134; (1996) 71 FCR 285, 291 (FC); and Rural Press Ltd -v- ACCC [2003] HCA 75; (2003) 216 CLR 53, [89]-[90].

[27] Originally Paragraph 11 in the Originating Motion.