FEDERAL COURT OF AUSTRALIA Australian Communications and Media Authority v Getaway Escapes Pty Ltd [2016] FCA 795 File number: QUD 196 of 2016 Judge: RANGIAH J Date of judgment: 10 June 2016 Catchwords: COMMUNICATIONS LAW – default judgment – telemarketing calls to numbers on Do Not Call Register – calling line identification disabled – declarations and injunctions – considerations relevant to civil penalty – deterrence – capacity to pay – course of conduct principle – totality principle – circumstances of contravention – cooperation Legislation: Australian Communications and Media Authority Act 2005 (Cth) Do Not Call Register Act 2006 (Cth) ss 11, 24, 25, 34, Sch 1 Telecommunications Act 1997 (Cth) ss 125A, 128, 564, 570 Federal Court Rules 2011 (Cth) rr 5.22, 5.23 Telemarketing and Research Industry Standard 2007 (Cth) s 8 Explanatory Memorandum, Do Not Call Register Bill 2006 (Cth) Cases cited: ACCC v Leahy Petroleum (No 2) [2005] FCA 254 Australian Communications and Media Authority v Clarity1 Pty Ltd (2006) 155 FCR 377 Australian Communications and Media Authority v FHT Travel Pty Ltd [2011] FCA 550 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330 Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730 Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513 Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCR 1425 Australian Competition and Consumer Commission v SIP Australia Pty Ltd [2003] FCA 336 Australian Energy Regulator v Snowy Hydro Limited (No 2) [2015] FCA 58 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 Darlaston v Parker (No 2) [2010] FCA 1382 Director of Consumer Affairs (Vic) v Alpha Flight Services Pty Ltd [2015] FCAFC 118 Markarian v The Queen (2005) 228 CLR 357 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No 2) [2014] FCA 27 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20 Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227 Trade Practices Commission v CSR Ltd (1990) ATPR 41-076 Trade Practices Commission v Mobil Oil Australia Ltd (1985) 4 FCR 296 Trade Practices Commission v Stihl Chainsaws (Aust) Pty Limited (1978) ATPR 40-091 Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375 Date of hearing: 31 May 2016 and 10 June 2016 Registry: Queensland Division: General Division National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Category: Catchwords Number of paragraphs: 55 Counsel for the Applicant: Mr G del Villar Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondents: The respondents did not appear ORDERS QUD 196 of 2016 BETWEEN: AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY Applicant AND: GETAWAY ESCAPES PTY LTD ACN 160 455 630 First Respondent JOANNE MARGARET DAY Second Respondent JUDGE: RANGIAH J DATE OF ORDER: 10 JUNE 2016 THE COURT DECLARES THAT: 1. The first respondent, between 14 March 2014 and 29 March 2014, contravened s 11(1) of the Do Not Call Register Act 2006 (Cth) (DNCR Act) by making, attempting to make, causing to be made or causing to be attempted to be made 5,293 telemarketing calls to Australian numbers that were registered on the Do Not Call Register. 2. The first respondent, between about July 2013 and 18 March 2014, contravened s 8(1) of the Telemarketing and Research Industry Standard 2007 and s 128(1) of the Telecommunications Act 1997 (Cth) (Telco Act) by not ensuring that calling line identification was enabled at all the times that it made or attempted to make telemarketing calls, or caused telemarketing calls to be made or attempted to be made. 3. The second respondent: (a) being the day-to-day manager of the first respondent's telemarketing business; (b) by directing or authorising the telemarketing calls referred to in paragraph 1 hereof; and (c) knowing that the first respondent did not have in place systems that were reasonably adequate for ensuring that the first respondent did not make, attempt to make, or cause to be made or attempted to be made, telemarketing calls to numbers that were registered on the Do Not Call Register; was directly or indirectly knowingly concerned in or a party to the contraventions of s 11(1) of the DNCR Act by the first respondent referred to in paragraph 1 hereof, in contravention of s 11(7) of the DNCR Act. 4. The second respondent: (a) being the day-to-day manager of the first respondent's telemarketing business; (b) by directing or authorising the telemarketing calls referred to in paragraph 2 hereof; and (c) knowing that the first respondent had not ensured that calling line identification was enabled at all of the times that it made or attempted to make, or caused to be made or attempted to be made, the telemarketing calls referred to in paragraph 2 hereof; was directly or indirectly knowingly concerned in or a party to the first respondent's contraventions of s 128(1) of the Telco Act referred to in paragraph 2 hereof, in contravention of s 128(2) of the Telco Act. THE COURT ORDERS THAT: 5. For the period of 5 years from the date of this order, in the event that the second respondent proposes to operate any business involving making or causing to be made an unsolicited telephone voice call that directly or indirectly advertises, promotes or offers the supply of goods and services, she: (a) is to give 14 days' notice in writing to the applicant: (i) of her proposal to engage in such conduct; and (ii) of these orders; and (b) is to provide to the applicant such information as the applicant reasonably requires that is relevant to its enforcement functions and powers under the Australian Communications and Media Authority Act 2005 (Cth) and which is requested within 7 days of the applicant being informed of the proposed conduct. 6. The first respondent pay to the Commonwealth of Australia a pecuniary penalty, pursuant to s 24 of the DNCR Act in respect of the contraventions of s 11(1) of the DNCR Act that are the subject of order 1 above, in the amount of $150,000. 7. The first respondent pay to the Commonwealth of Australia a pecuniary penalty, pursuant to s 570 of the Telco Act in respect of the contraventions of s 128(1) of the Telco Act that are the subject of order 2 above, in the amount of $150,000. 8. The second respondent pay to the Commonwealth of Australia a pecuniary penalty, pursuant to s 24 of the DNCR Act in respect of the contraventions of s 11(7) of the DNCR Act that are the subject of order 3 above, in the amount of $12,500. 9. The second respondent pay to the Commonwealth of Australia a pecuniary penalty, pursuant to s 570 of the Telco Act in respect of the contraventions of s 128(2) of the Telco Act that are the subject of order 4 above, in the amount of $12,500. 10. Subject to order 2 of the orders made on 24 March 2016 in these proceedings, the respondents pay the applicant's costs for the proceedings, to be taxed if not agreed. NOTICE UNDER RULE 41.06 OF THE FEDERAL COURT RULES 2011 TO: Getaway Escapes Pty Ltd ACN 160 455 630 (in liq.) and Joanne Margaret Day You are liable to imprisonment, sequestration of property or punishment for contempt if: (a) for an order that requires the person to do an act or thing – the person neglects or refuses to do the act or thing within the time specified in the order; or (b) for an order that requires the person not to do an act or thing – the person disobeys the order. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT RANGIAH J: 1 This is an application by the applicant, the Australian Communications and Media Authority ("the Authority"), for default judgment against the respondents. 2 The Authority's substantive proceeding seeks declarations, injunctions and civil penalties against the respondents. The Authority alleges that the first respondent, Getaway Escapes Pty Ltd ACN 160 455 630 (in liq) ("Getaway Escapes"), contravened s 11(1) of the Do Not Call Register Act 2006 (Cth) ("DNCR Act") and s 128(1) of the Telecommunications Act 1997 (Cth). The Authority alleges that the second respondent, Joanne Margaret Day, was knowingly concerned in, or party to, the company's contraventions. 3 Getaway Escapes is in liquidation. On 24 March 2016, I ordered that the Authority have leave nunc pro tunc to begin and continue its proceeding. I granted that leave on the condition that the Authority not enforce any order against Getaway Escapes for the payment of money, whether by way of penalty costs or otherwise, without the leave of the Court. On the same date, I ordered substituted service of the application, statement of claim and the order on Ms Day. Default judgment 4 Rule 5.22 of the Federal Court Rules 2011 (Cth) provides: A party is in default if the party fails to: (a) do an act required to be done, or to do an act in the time required, by these Rules; or (b) comply with an order of the Court; or (c) attend a hearing in the proceeding; or (d) prosecute or defend the proceeding with due diligence. 5 Ms Day failed to comply within the required time with the order made on 24 March 2016 that she file a notice of address for service. Neither respondent has filed a defence. The liquidator for Getaway Escapes and Ms Day informed the solicitor for the Authority that they did not intend to participate in the proceeding. The hearing of the application for default judgment commenced on 31 May 2016, and neither respondent appeared on that date. The hearing was adjourned until 10 June 2016, but neither respondent appeared at the adjourned hearing (although Ms Day filed written submissions as to penalty on 8 and 10 June 2016). In these circumstances, I am satisfied that each of the respondents is in default. 6 The Authority seeks an order under r 5.23(2)(c) of the Federal Court Rules. Where there has been default by the respondent that rule provides the Court with a discretion to give: …judgment against the respondent for the relief claimed in the statement of claim to which the Court is satisfied that the applicant is entitled. 7 In Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227, Flick J summarised the principles applicable to an application for default judgment. His Honour said, relevantly for the present case: 23. [T]he requirement is that the Court needs to be "satisfied" on the face of the statement of claim that the applicant is entitled to the "relief" claimed... The facts as alleged in the statement of claim are deemed to have been admitted by a respondent… 24. [T]o be satisfied that an applicant "is entitled" to the relief claimed in the statement of claim, the Court needs to be satisfied that "each element of the relevant civil wrong involved is properly and discretely pleaded in the statement of claim". (Citations omitted.) 8 The facts alleged in the statement of claim which the respondents are deemed to have admitted include the following. 9 Getaway Escapes carried on a business which made telemarketing calls to members of the public to offer, advertise and promote the supply of goods and services in the hospitality and travel industries. Some of the goods and services were offered by Getaway Escapes itself, while others were offered by other entities. 10 Ms Day was a director and shareholder of Getaway Escapes and was responsible for the day-to-day management of that company's telemarketing business. Getaway Escapes acquired lists of telephone numbers (known as "raw lists") that were inputted into an automatic dialing system to call telephone numbers on the list. 11 Getaway Escapes engaged a third-party, Contaxx Pty Ltd, to supply and manage software related to the automated dialing system. Under s 13 of the DNCR Act, the Authority must keep a register of Australian telephone numbers, known as the Do Not Call Register, on which Australian telephone numbers may be entered. Getaway Escapes had software available to it which it could use to eliminate (or "wash") telephone numbers on the Do Not Call Register from the raw lists. 12 On 12 April 2013 and 9 October 2013 the Authority notified Getaway Escapes that complaints had been received about its telemarketing calls to numbers on the Do Not Call Register. The emails warned Getaway Escapes to review its procedures. Despite these warnings, in the two-week period from 14 March 2014 to 29 March 2014, Getaway Escapes made, or attempted to make, 5,293 telephone calls to numbers that were on the Do Not Call Register, and had been on that register for at least 30 days. 13 In its email of 12 April 2013, the Authority also warned Getaway Escapes that a complaint had been made that an unsolicited telemarketing call had been made for which the calling number was not displayed. In July 2013, Getaway Escapes directed Contaxx Pty Ltd to disable the automated dialing system's calling line identification ("CLI") facility. Disabling the CLI facility prevented Getaway Escapes' calling number being displayed to the recipients of its telephone calls. The CLI facility was re-enabled after 18 March 2014. Getaway Escapes made, or attempted to make, some 143,933 calls from about 5 March 2014 to about 18 March 2014 with the CLI facility disabled. 14 Ms Day directed or authorised the telephone calls to numbers on the Do Not Call Register and the calls with CLI disabled. 15 Section 11 of the DNCR Act provides, relevantly: (1) A person must not make, or cause to be made, a telemarketing call to an Australian number if: (a) the number is registered on the Do Not Call Register; and (b) the call is not a designated telemarketing call. … (7) A person must not: (a) aid, abet, counsel or procure a contravention of subsection (1); or (b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or (c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or (d) conspire with others to effect a contravention of subsection (1). Civil penalty provisions (8) Subsections (1) and (7) are civil penalty provisions. 16 There are a number of circumstances set out ss 11(2)-(5) where s 11(1) does not apply, but there is no suggestion that any of those subsections are engaged. The relevant telephone calls were not "designated telemarketing calls" within Sch 1 of the DNCR Act. 17 I am satisfied, having regard to the deemed admission of the facts alleged in the statement of claim, that Getaway Escapes contravened s 11(1) of the DNCR Act by making, or attempting to make, 5,293 telephone calls to numbers registered on the Do Not Call Register between 14 March 2014 and 29 March 2014. I am also satisfied that Ms Day was knowingly concerned in Getaway Escapes' contraventions of s 11(1) of the DNCR Act. 18 Section 128 of the Telecommunications Act provides, relevantly: (1) If an industry standard that applies to participants in a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry is registered under this Part, each participant in that section of the industry must comply with the standard. (2) A person must not: … (c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1);… (3) Subsections (1) and (2) are civil penalty provisions. 19 Pursuant to s 125A of the Telecommunications Act, the Authority promulgated the Telemarketing and Research Industry Standard 2007 ("the Standard"). Section 8 of the Standard provides, relevantly: (1) A caller must ensure that calling line identification is enabled at the time that the caller makes or attempts to make a call, or causes a call to be made or attempted to be made. 20 I am satisfied, having regard to the deemed admission of the facts alleged in the statement of claim, that Getaway Escapes contravened s 128(1) of the Telecommunications Act by making, or attempting to make, telemarketing calls between about July 2013 and 18 March 2014 without ensuring that CLI was enabled. Those calls included 143,933 calls between about 5 March 2014 and about 18 March 2014. I am also satisfied that Ms Day was knowingly concerned in Getaway Escapes' contravention of s 128(1) of the Telecommunications Act. Declarations 21 The Authority seeks the making of declarations against the respondents. It is appropriate to make such declarations for the reasons described in Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730 at [6] (Nicholson J), namely that declarations: 1. are an appropriate vehicle to record the Court's disapproval of the contravening conduct; 2. serve to vindicate the Commission's claim that the respondents contravened the Act; 3. are of some assistance to the Commission in the future in carrying out the duties which are conferred upon it by the Act; 4. are of assistance in clarifying the law; 5. may inform consumers of the dangers arising from a respondent's contravening conduct; and 6. may deter corporations from contravening the Act. (Citations omitted.) Injunctions 22 The Authority seeks injunctions against Ms Day, but not Getaway Escapes. Section 34(1) of the DNCR Act allows the Court to grant injunctions restraining a person from engaging in conduct, or requiring a person to do something, if the person is engaging or proposes to engage in any conduct in contravention of a civil penalty provision. There is an almost identical provision in s 564(1) of the Telecommunications Act. 23 One of the injunctions sought by the Authority essentially repeats the words of s 11(1) of the DNCR Act and seeks to restrain Ms Day for a period of five years from contravening that section. There are two problems with granting an injunction in that form. Firstly, it may suggest that at the end of five years Ms Day will be at liberty to contravene s 11(1): cf Australian Communications and Media Authority v FHT Travel Pty Ltd [2011] FCA 550 at [14] (Dowsett J). Secondly, it is of no utility since Ms Day is bound to comply with s 11(1) even without such an injunction being in place. In these circumstances, I decline to order that injunction. 24 The Authority also seeks an injunction compelling Ms Day to notify the Authority in the event that she proposes to engage in any business activity involving telemarketing for the next five years, and to provide information that the Authority reasonably requires incidental to its powers and functions. The injunction sought by the Authority is too wide, particularly because it covers not only the operation of a telemarketing business by Ms Day, but also her possible employment in a telemarketing business operated by someone else: ACMA v FHT Travel Pty Ltd at [14]-[15]. I will order a narrower form of injunction which requires Ms Day to notify the Authority in the event that she proposes to operate a telemarketing business within the next five years. Civil penalties 25 The Authority submits that the Court should impose civil penalties on each of the respondents. Section 24 of the DNCR Act provides, relevantly: 24 Civil penalty orders (1) If the Federal Court or the Federal Circuit Court is satisfied that a person has contravened a civil penalty provision, the court may, on the application of the ACMA, order the person to pay to the Commonwealth a pecuniary penalty. (2) An order under subsection (1) is to be known as a civil penalty order. Determining pecuniary penalty (3) In determining the pecuniary penalty, the court must have regard to all relevant matters, including: (a) the nature and extent of the contravention; and (b) the nature and extent of any loss or damage suffered as a result of the contravention; and (c) the circumstances in which the contravention took place; and (d) whether the person has previously been found by a court in proceedings under this Act to have engaged in any similar conduct; and (e) if the court considers that it is appropriate to do so – whether the person has previously been found by a court in a foreign country to have engaged in any similar conduct. … 26 Sections 570(1) and (2) of the Telecommunications Act are in almost identical terms to ss 24(1) and (3) of the DNCR Act. 27 It is appropriate that civil penalties be imposed on each of the respondents. I will address the question of the amount of the civil penalties by reference to the specific factors that the Authority submits are relevant. Specific and general deterrence 28 The authorities concerning civil penalties give considerable weight not only to specific deterrence (deterring the offender), but to general deterrence (deterring others). The authorities establish that: (a) The purpose of a civil penalty is primarily if not wholly protective in promoting the public interest in compliance: Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 at [55] (French CJ, Kiefel, Bell, Nettle and Gordon JJ). (b) The penalty should be such as to deter not only the particular offender, but others who may be disposed to engage in prohibited conduct of a similar kind: Trade Practices Commission v CSR Ltd (1990) ATPR 41-076 at 52,152 (French J); Trade Practices Commission v Mobil Oil Australia Ltd (1985) 4 FCR 296 at 298 (Toohey J). (c) The Court should leave no room for any impression of weakness in its resolve to impose penalty sufficient to ensure deterrence: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 ("NW Frozen Foods") at 294-5 (Burchett, Kiefel and Carr JJ). (d) The penalty must be sufficiently high that a business acting rationally and in its own best interests will not be prepared to treat the risk of such penalty as a business cost: Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCR 1425 at [15] (Selway J). (e) While the penalty must not be so high as to be oppressive, it will not be oppressive if it is no greater than is necessary to achieve the general object of deterrence: Trade Practices Commission v Stihl Chainsaws (Aust) Pty Ltd (1978) ATPR 40-091 at 17,896 (Smithers J); NW Frozen Foods at 293; ACCC v Leahy Petroleum (No 2) [2005] FCA 254 at [9] (Merkel J). The financial position of the contravener and capacity to pay 29 The financial position of the contravener and its capacity to pay a civil penalty are relevant to the amount of the penalty. This factor is of less relevance than the need to impose a penalty that satisfies the objective of general deterrence: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 at [39] (Goldberg J); Australian Communications and Media Authority v Clarity1 Pty Ltd (2006) 155 FCR 377 at [43] (Nicholson J). 30 Getaway Escapes' liquidator has indicated that the company has no capacity to pay any penalty. Specific deterrence, therefore, is not a factor that will apply to the penalty against Getaway Escapes. However, general deterrence remains relevant to the imposition of a penalty against Getaway Escapes. In Australian Competition and Consumer Commission v SIP Australia Pty Ltd [2003] FCA 336, Goldberg J said at [59]: If general deterrence is to have any meaning, a company in liquidation which has contravened the Act must be ordered to pay an appropriate pecuniary penalty as a deterrent to others who might be tempted to engage in similar conduct. 31 Similarly in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513 at [20] (Moore, Dowsett and Greenwood JJ), the Full Court stated: [A] court may impose a penalty on a company in liquidation if, to do so, would clearly and unambiguously signify to, for example, companies or traders in a discrete industry that a penalty of a particular magnitude was appropriate (and was of a magnitude which might be imposed in the future) if others in the industry sector engaged in the same or similar conduct. 32 It is appropriate to impose a penalty on Getaway Escapes even though it is in liquidation and will not have the capacity to pay a penalty. 33 Ms Day is not a bankrupt, but the evidence indicates that her financial position is poor. She is employed and earns $22 per hour. The evidence indicates that she has a limited capacity to pay a civil penalty. Nevertheless, it is clear that she has some financial capacity. The object of general and specific deterrence make it appropriate that she be required to pay civil penalties in respect of her contraventions. Maximum penalties 34 The maximum penalties for contraventions of s 11 of the DNCR Act are set out in s 25 of that Act. The maximum penalty is $340,000 for Getaway Escapes and $68,000 for Ms Day for each day on which two or more contraventions are found to have occurred: ss 25(3)(b)(i) and 25(4)(b)(i) of the DNCR Act. 35 Maximum penalties for contravention of s 128 of the Telecommunications Act are set out in ss 570(3) and (4) of that Act. For Getaway Escapes, the maximum penalty is $250,000 for each contravention. For Ms Day it is $50,000 for each contravention. 36 Having regard to the number of contraventions by Getaway Escapes and Ms Day, the maximum potential penalties are many millions of dollars. In such a case, the maximum potential penalties must still be considered, but has limited significance for the outcome: cf Markarian v The Queen (2005) 228 CLR 357 at [30]-[31] (Gleeson CJ, Gummow, Hayne and Callinan JJ). Course of conduct principle 37 Separate contraventions arising from separate acts should ordinarily attract separate penalties. However, a different principle may apply where there are separate acts giving rise to separate contraventions which are so inextricably interrelated that they should be viewed as one multi-faceted course of conduct or one transaction. The general objective of the "course of conduct" principle is to ensure that the sentence or penalty fairly reflects the substance of the offending conduct, rather than a purely mathematical total for each separate offence which may be able to be technically identified: Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No 2) [2014] FCA 27 ("Matcham") at [201] (Jacobson J); Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205 ("MT Solar") at [75]. 38 However, the maximum penalty applicable for the entire course of conduct is not limited by the statutory maximum for one contravention. The maximum penalty can still be applied, where appropriate, to each contravention which forms part of the course of conduct. Accordingly, a penalty can be imposed for a course of conduct which greatly exceeds, if appropriate, the statutory maximum for a single contravention: Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 at [39]-[42] (Middleton and Gordon JJ); Director of Consumer Affairs (Vic) v Alpha Flight Services Pty Ltd [2015] FCAFC 118 at [46] (Barker, Katzmann and Beach JJ); Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20 at [60] (Keane CJ, Finn and Gilmour JJ); Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330 at [82]-[85], [103] (Allsop CJ). In practice, however, the maximum for one contravention may operate as a useful guide for penalising a course of conduct: Australian Energy Regulator v Snowy Hydro Limited (No 2) [2015] FCA 58 at [119] (Beach J). 39 The question of whether certain contraventions should be treated as being a truly single course of conduct is a factual inquiry to be made, having regard to all of the circumstances of the case. The course of conduct, or one transaction principle, is a tool of analysis which can, but need not be applied in any given case: MT Solar at [75]-[77], [89]; Matcham at [199]-[201]. 40 The respondents' contraventions of s 11 of the DNCR Act involved a single course of conduct, namely the making of, or attempting to make, unsolicited telephone calls to numbers that had been placed on the Do Not Call Register. The contraventions of s 128 of the Telecommunications Act also involved one course of conduct arising from a common factor, namely the act of disabling the CLI facility in July 2013. Totality 41 The total penalty for related offences ought not exceed what is proper for the entire contravening conduct involved: Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375 at 40,169 (Burchett J). Decisions of the Full Court have held that the approach adopted in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 at 53 (Goldberg J), of first ascertaining the appropriate penalty for each separate contravention and then checking if the final total is appropriate, is preferable to first deciding a total appropriate penalty and then working backwards to divide it amongst the various contravention components. The cases thereby recognise the importance of beginning with a sum appropriate for each contravention, before turning to the question of totality: Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 at [145] (Jessup J); Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [23]-[25] (Gray J), [66]-[71] (Graham J) and [95]-[97] (Buchanan J); Darlaston v Parker (No 2) [2010] FCA 1382 at [17] (Flick J). 42 The totality principle should be applied in this case. To apply an individual penalty for each contravention would be to exceed what is appropriate for the entirety of the contravening conduct. The circumstances in which the contraventions took place 43 The contraventions of the DNCR Act and the Telecommunications Act were serious. Getaway Escapes and Ms Day had been warned twice by the Authority that it had received complaints about Getaway Escapes' conduct. 44 Ms Day explains that the contraventions occurred through human error when the wrong lists of telephone numbers were loaded into the company's auto-dialer. Even accepting that explanation, it does not explain why the contraventions continued after warnings from the Authority. 45 The Authority alleges that the contraventions of s 128 of the Telecommunications Act are serious because Getaway Escapes took an active step to disable the CLI facility in the auto-dialer. Ms Day states that she did not have the ability to disable the CLI function. However, she has not addressed the Authority's allegation that Getaway Escapes instructed its information technology provider to disable that function. Given the deemed admission of the allegations in the statement of claim, I accept that such an instruction was given. The contraventions of s 128 of the Telecommunications Act are also aggravated by the fact that Getaway Escapes continued to use the CLI disabled auto-dialer while on notice from the Authority that it was contravening the Standard. 46 It is relevant that the contraventions arise at the most senior level of management of Getaway Escapes. Ms Day was a director and was responsible for Getaway Escapes' day-to-day operations. Comparable cases 47 There has only been one other case involving the imposition of civil penalties for contraventions of s 11 of the DNCR Act, namely ACMA v FHT Travel Pty Ltd. In that case, Dowsett J imposed a penalty on the corporate respondent of $120,000 for contraventions involving about 12,500 infringing calls in a period of slightly less than a month. His Honour declined to impose a penalty on the individual respondent, the managing director, because she was a bankrupt, but indicated that a penalty in the range of $10,000 to $20,000 would otherwise have been appropriate. 48 There have been no cases in which civil penalties for contraventions of s 128 of the Telecommunications Act have been imposed. Cooperation 49 It is relevant that neither respondent has sought to contest the proceeding brought by the Authority. It has been a saving of the resources expended by the Authority, which should be recognised in the civil penalty that is determined: NW Frozen Foods at 289. The nature and extent of any loss or damage suffered as a result of the contraventions 50 There is no evidence of any financial loss to any person as a result of the contravening conduct. However, the Explanatory Memorandum for the Do Not Call Register Bill 2006 (Cth) demonstrates that the creation of the Do Not Call Register was aimed at addressing: …rising community concerns about the inconvenience and intrusiveness of telemarketing on Australians, as well as concerns about the impact of telemarketing on an individual's privacy. 51 The calls to the registered numbers undermine that aim, and no doubt caused inconvenience and annoyance to members of the public who had taken the trouble to have their numbers listed on the Do Not Call Register. 52 In addition, by not displaying CLI, the respondents limited the call recipients' ability to identify the contravening company in making a complaint to the Authority. The requirement that CLI is enabled is important, because it assists the Authority to investigate potential breaches of the Standard and the Telecommunications Act. Conclusion 53 Taking into account all the relevant factors, it is appropriate to impose a civil penalty on Getaway Escapes of $150,000 for its contraventions of s 11 of the DNCR Act. There will be a further civil penalty of $150,000 in respect of Getaway Escapes' contraventions of s 128 of the Telecommunications Act. 54 A civil penalty of $12,500 will be imposed on Ms Day for her contraventions of s 11 of the DNCR Act. There will be a further penalty of $12,500 imposed on Ms Day for her contraventions to s 128 of the Telecommunications Act. 55 There will be an order that the respondents pay the Authority's costs of the proceedings. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate: Dated: 13 July 2016