Australian Communications and Media Authority v Limni Enterprises Pty Ltd (formerly known as Red Telecom Pty Ltd)

• Jurisdiction: Australia Federal only
• Judge: PERRY J
• Judgment Date: 11 July 2022
• Neutral Citation: [2022] FCA 795
• Date: 11 July 2022
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Australian Communications and Media Authority v Limni Enterprises Pty Ltd (formerly known as Red Telecom Pty Ltd) [2022] FCA 795

File number:	NSD 2167 of 2019
Judge:	PERRY J
Date of judgment:	11 July 2022
Catchwords:	CONSUMER LAW – where seven determinations made against the first respondent company in favour of various consumers by the Telecommunications Industry Ombudsman (TIO) under the TIO alternative dispute resolution scheme – where declarations earlier made by consent that the first respondent company contravened s 101(1), Telecommunications Act 1997 (Cth) (Telco Act) in failing to comply with the TIO determinations and make the required payments under the TIO determinations – where declarations earlier made that the second respondent, the sole director, was complicit in the company’s contravening conduct – where second respondent was the controlling mind of the first respondent at all material times – where second respondent made deliberate decisions not to comply in order to consider legal options for challenging the TIO determinations – where payment of amounts owed under the TIO determinations were delayed by between 12-23 months and were made pursuant to Court orders well after proceedings instituted – consideration of relevant factors in imposing pecuniary penalties under s 570(2), Telecommunications Act 1997 (Cth) – whether contraventions part of the same course of conduct because the decision not to comply was made by the second respondent for the same reason for each contravention – consideration of the primacy of deterrence in setting an appropriate penalty – where general deterrence relevant despite the first respondent being in liquidation – whether specific deterrence is relevant given the second respondent’s (current) intention never to return to the telecommunications industry – whether the extent of the regulator’s legal costs is relevant to the determination of appropriate penalties – whether penalties sought against the second respondent are greater than necessary to achieve the object of deterrence and would be oppressive in the legal sense – where interactions with the regulators and proceedings took a serious toll on second respondent personally, including on his mental health – where second respondent unemployed – where totality principle applied to reduce total pecuniary penalties imposed on the second respondent in order that the total is just and appropriate – total pecuniary penalties of $450,000 imposed on first respondent and $115,125 on second respondent ; CORPORATIONS – where first respondent went into liquidation after declarations of contravening conduct made but before hearing and determination of penalty – where regulator applied for leave to continue proceedings against first respondent pursuant to s 500(2), Corporations Act 2001 (Cth) – where general deterrence remains highly relevant – where strong public interest in the proceedings continuing so that appropriate relief can be granted – leave granted
Legislation:	Corporations Act 2001 (Cth) s 500(2) Evidence Act 1995 (Cth) s 192A Telecommunications Act 1997 (Cth) ss 86, 98(1), 101(1)‑(2), 521(2), 570(1)-(2) Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) ss 127, 128(1), 132
Cases cited:	Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 96 ALJR 426 Australian Communications and Media Authority v Bytecard Pty Ltd [2013] FCA 38 Australian Communications and Media Authority v Red Telecom [2020] FCA 996 Australian Communications and Media Authority v TPG Internet Pty Ltd [2014] FCA 382; (2014) 221 FCR 502 Australian Communications Authority v Viper [2001] FCA 637; 110 FCR 380 Australian Communications Authority v Viper Communications Pty Ltd [2000] FCA 1664; (2000) 108 FCR 173 Australian Competition and Consumer Commission v Birubi Art Pty Ltd (No 2) [2018] FCA 1785 Australian Competition and Consumer Commission v Cement Australia [2017] FCAFC 159; (2017) 258 FCR 312 Australian Competition and Consumer Commission v High Adventure Pty Limited [2005] FCAFC 247; (2006) ATPR 42-091 Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265; (2005) 215 ALR 301 Australian Competition and Consumer Commission v Link Solutions Pty Ltd [2008] FCA 1790; (2008) 68 ACSR 561 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 Australian Competition and Consumer Commission v SensaSlim Australia Pty Ltd (in liq) (No 7) [2016] FCA 484 Australian Competition and Consumer Commission v SIP Australia Pty Limited [2003] FCA 336; (2003) ATPR 41-937 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 Australian Competition and Consumer Commission v Visa [2015] FCA 1020; (2010) 339 ALR 413 Australian Competition and Consumer Commission v Birubi Art Pty Ltd (in liq) (No 3) [2019] FCA 996 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243 Environment Protection Authority v Barnes [2006] NSWLEC 2 Environmental Protection Authority v Barnes [2006] NSWCCA 246 Fair Work Ombudsman v Blue Sky Kids Land Pty Ltd (in liquidation) [2020] FCA 718 Federal Commissioner of Taxation v Arnold (No 2) [2015] FCA 34; (2015) 324 ALR 59 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285 Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No 2) [2014] FCA 27; (2014) 97 ACSR 412 Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 Trade Practices Commission v CSR Limited [1990] FCA 762; (1991) ATPR 41-076 Universal Music Pty Ltd v Australian Competition & Consumer Commission [2003] FCAFC 193; (2003) 131 FCR 529 Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49; (2021) 284 FCR 24
Date of hearing:	1 June 2021
Date of last submissions:	28 June 2021
Registry:	New South Wales
Division:	General Division
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	150
Counsel for the Applicant:	Ms Meher Gaven
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the First Respondent:	The first respondent filed a submitting notice
Counsel for the Second Respondent:	Mr Callan O’Neill
Solicitor for the Second Respondent:	TPS&Co Lawyers

ORDERS

		NSD 2167 of 2019
BETWEEN:	...