On 2 May 2014, the Full Federal Court allowed an appeal by the ACCC of the penalty orders made by Justice Marshall on 8 July 2013 against the former Tasmanian Europcar franchisee, BAJV Pty Ltd (BAJV), and BAJV director Brendon Ayers. The Full Court also allowed a cross-appeal by BAJV and Mr Ayers as to costs.
As previously noted (see here), on 8 July 2013 the Federal Court found vehicle rental company BAJV in breach of the misleading or deceptive conduct and unconscionable conduct provisions.
The ACCC was successful on one of its four grounds of appeal. The Full Federal Court found that Justice Marshall had erred by taking the ACCC’s failure to respond to a letter from the lawyers for BAJV and Mr Ayers before commencing the proceedings in the assessment of penalties into account. The Full Court accepted the ACCC’s submission that, in the circumstances of the case, it was not open to the primary judge to reduce the penalty that would otherwise have been appropriate because the ACCC did not engage in negotiations with the respondents before commencing its proceeding. As a result, the Full Court increased the penalty ordered against BAJV from $200,000 to $220,000, and increased the penalty ordered against Mr Ayers from $40,000 to $44,000.
The letter was also the subject of BAJV’s cross appeal. On that point, the Full Court accepted BAJV submission that a qualification of the ACCC’s conventional entitlement to costs was the most obvious means by which the court should have marked it’s disapproval at the ACCC’s failure to accept BAJV’s invitation to enter into discussions. The Full Court reduced the costs that the ACCC is entitled to recover by 15%, to 85% of its costs.