FEDERAL COURT OF AUSTRALIA Australian Competition and Consumer Commission v Geowash Pty Ltd (Subject to a Deed of Company Arrangement) (No 4) [2020] FCA 23 File number: WAD 230 of 2017 Judge: COLVIN J Date of judgment: 24 January 2020 Catchwords: CONSUMER LAW - application by regulator for relief orders and pecuniary penalties against a company, its sole director and its 'national franchising manager' - where findings as to liability made - where findings of unconscionable conduct and breach of the good faith obligation made - where director and 'national franchising manager' found to be knowingly concerned in the unconscionable conduct - consideration of totality principle and course of conduct principle in assessing penalties - consideration of relativity of penalties between individuals and corporations - where regulator proposed establishment of a non-party consumer redress fund - where loss or damage likely to have been suffered by non-party consumers - consideration of the nature and extent of the power conferred by s 239 of the Australian Consumer Law - consideration of form of consumer redress fund to established - orders made for declarations, pecuniary penalties, injunctions, disqualification and redress Legislation: Australian Consumer Law ss 21, 224, 238, 239, 240, 241, 243, 248 Competition and Consumer Act 2010 (Cth) ss 76, 83, 51ACB, 51AE, 137H Trade Practices Act 1974 (Cth) s 87AAA Cases cited: Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 Australian Competition and Consumer Commission v ACN 117 372 915 Pty Ltd (in liq) (formerly Advanced Medical Institute Pty Ltd) [2015] FCA 368 Australian Competition and Consumer Commission v AGL South Australia Pty Ltd [2015] FCA 399 Australian Competition and Consumer Commission v Ashley & Martin Pty Ltd (No 2) [2019] FCA 1739 Australian Competition and Consumer Commission v Burden [2017] FCA 399 Australian Competition and Consumer Commission v Clinica Internationale Pty Ltd (No 2) [2016] FCA 62 Australian Competition and Consumer Commission v Cornerstone Investment Aust Pty Ltd (in liq) (No 5) [2019] FCA 1544 Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liq) [2007] FCAFC 146; (2007) 161 FCR 513 Australian Competition and Consumer Commission v Geowash Pty Ltd (Subject to a Deed of Company Arrangement) (No 3) [2019] FCA 72 Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd (in liq) (No 3) [2017] FCA 1018 Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 2) [2012] FCA 535 Australian Competition and Consumer Commission v Harrison (No 2) [2017] FCA 182 Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698 Australian Competition and Consumer Commission v Multimedia International Services Pty Ltd [2016] FCA 439; (2016) 243 FCR 392 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181 Australian Competition and Consumer Commission v SensaSlim Australia Pty Ltd (in liq) (No 5) [2014] FCA 340 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 Australian Competition and Consumer Commission v We Buy Houses Pty Ltd (No 2) [2018] FCA 1748 Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; (2011) 195 FCR 1 Australian Securities and Investments Commission v Adler [2002] NSWSC 483 Australian Securities and Investments Commission v Citrofresh International Ltd (No 3) [2010] FCA 292 Australian Securities and Investments Commission v Kobelt [2017] FCA 387 Australian Securities and Investments Commission v Kobelt [2019] HCA 18 Australian Securities and Investments Commission v Westpac Banking Corporation (No 3) [2018] FCA 1701 Commissioner for Fair Trading v Digital Marketing and Solutions Pty Ltd t/as Android Enjoyed and Camerasky [2019] NSWSC 370 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2015] FCAFC 118 Director of Consumer Affairs Victoria v Domain Register Pty Ltd (No 2) [2018] FCA 2008 Director of Consumer Affairs Victoria v Wens Bros Trading Pty Ltd [2019] FCA 39 Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301 Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112 Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121 Kobelt v Australian Securities and Investments Commission [2018] FCAFC 18 Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79 Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285 PT Garuda Indonesia Ltd v Australian Competition & Consumer Commission [2012] HCA 33; (2012) 247 CLR 240 Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20 Swishette Pty Ltd v Australian Competition and Consumer Commission [2017] FCAFC 45; (2017) 249 FCR 483 Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 Vella v Commissioner of Police (NSW) [2019] HCA 38 Date of hearing: 17 September 2019 Date of last submissions: 18 October 2019 (Second and Third Respondents) 1 November 2019 (Applicant) Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Category: Catchwords Number of paragraphs: 224 Counsel for the Applicant: Mr SM Davies SC with Mr AJC Mossop Solicitor for the Applicant: Norton Rose Fulbright Counsel for the Second and Third Respondents: Mr M Rennie Solicitor for the Second and Third Respondents: Roderick Storie Solicitors ORDERS WAD 230 of 2017 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant AND: GEOWASH PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) (ACN 153 078 766) First Respondent SANAM ALI Second Respondent CHARLES CAMERON Third Respondent JUDGE: COLVIN J DATE OF ORDER: 24 JANUARY 2020 THE COURT DECLARES THAT: 1. The first respondent: (a) from 2013 until approximately October 2016, by the provision to prospective franchisees of a standard form franchise agreement (Franchise Agreement) and a document titled 'Disclosure Document for Franchisee or Prospective Franchisee' (Disclosure Document), represented to prospective franchisees (save for two franchisees) that it would charge franchisees in accordance with these documents (Charging Representation), when this was not true; and (b) between 21 May 2015 and 13 May 2016, in the course of marketing franchises, made representations on its website, www.geowash.com.au, to the effect that: (i) prospective franchisees could make gross revenues of $70,216 in an average 28-day period based on the actual average monthly revenue of a leading franchise (Revenue Representation); (ii) prospective franchisees could make gross profits of $30,439 in an average 28-day period based on the actual average monthly profit of a leading franchise (Profit Representation); and (iii) Geowash had a commercial relationship or affiliation with each of Nissan, Kia, Renault, Audi, Emirates, Shell, Hertz, Holden, Ikea and Thrifty (Affiliation Representation), when the representations were not true, and (as to the Revenue Representation and Profit Representation) were made in circumstances where the first respondent did not have reasonable grounds for making the representations; and the first respondent thereby in trade or commerce: (c) in respect to the Charging Representation, Revenue Representation, Profit Representation and Affiliation Representation, engaged in conduct that was misleading or deceptive or likely to mislead or deceive, in contravention of s 18 of the Australian Consumer Law (ACL); and (d) in connection with the supply or possible supply of a franchise and franchise establishment services: (i) in respect to the Revenue Representation and Profit Representation, made representations that were false or misleading in a material particular and concerned the profitability, risk or other material aspect of a business activity, in contravention of s 37(2) of the ACL; and (ii) in respect to the Affiliation Representation, made a false or misleading representation that it had sponsorship, approval or an affiliation, in contravention of s 29(1)(h) of the ACL. 2. From 2013 until approximately October 2016, the first respondent engaged in a system of conduct whereby it: (a) negotiated the sale of franchises to prospective franchisees, some of whom were unsophisticated when it came to owning and operating a business; (b) despite the terms of the Franchise Agreement and Disclosure Document, and inconsistently with those documents, negotiated with prospective franchisees a 'purchase price' that reflected an assessment made by the first respondent, as to what the franchisee was willing to pay rather than an assessment of the likely cost of a franchise; (c) represented to prospective franchisees that the amount charged was required to meet the actual costs to fit-out and set-up a franchise when in fact it was calculated with the expectation of the first respondent, that the amount would cover sales commissions of at least 20%, the costs of fit-out and setup, and also provide further funds that could be applied to the general purposes of the first respondent; (d) well before they were required, took the funds that were to be applied to meet the costs of establishing the franchise and used them first to pay sales commissions to the second and third respondents and then used the monies as if they were general funds available to first respondent to meet its own costs and expenses; (e) as a consequence, funds that should have been available to meet fit-out costs were not available when required which exposed franchisees to the very real risk that the first respondent would take their money and not be able to establish an outlet of the kind that had been described or not be able to establish a hand car wash outlet at all; and (f) thereby adopted a business model which was inherently dishonest, and the first respondent thereby in trade or commerce: (g) engaged in conduct that was, in all the circumstances, unconscionable, in contravention of s 21 of the ACL; and (h) failed to comply with cl 6 of the Franchising Code of Conduct, thereby contravening s 51ACB of the Competition and Consumer Act 2010 (Cth) (CCA), in respect of its dealings with the following four franchisees after 1 January 2015: (i) Western Care Pty Ltd; (ii) Rhods Family Trust; (iii) Shri Ganpate Namah Pty Ltd; and (iv) Panjab Pty Ltd. 3. The second respondent caused the first respondent to engage in the conduct declared in orders 1 and 2 and was thereby directly or indirectly knowingly concerned in, or a party to, the contraventions of the first respondent declared in orders 1 and 2. 4. The third respondent caused the first respondent to engage in the conduct declared in order 2 and was thereby directly or indirectly knowingly concerned in, or a party to, the contraventions of the first respondent declared in order 1(c) (as to the Charging Representation) and order 2. AND THE COURT ORDERS THAT: Penalties 5. The first respondent pay to the Commonwealth of Australia the sum of $2,500,000 by way of pecuniary penalty in respect of the declared contraventions. 6. The operation of order 5 be stayed until further order. 7. The second respondent pay to the Commonwealth of Australia within 30 days the sum of $1,045,000 by way of pecuniary penalty in respect of the declared contraventions. 8. The third respondent pay to the Commonwealth of Australia within 30 days the sum of $656,000 by way of pecuniary penalty in respect of the declared contraventions. Injunctions 9. The second respondent is restrained for a period of five years from the date of this order from being knowingly concerned in, or a party to, conduct of the kind referred to in the declared contraventions. 10. The third respondent is restrained for a period of five years from the date of this order from being knowingly concerned in, or a party to, conduct of the kind referred to in the declared contraventions. Redress 11. Pursuant to s 239 of the ACL, each of the second and third respondents do pay the amount of $500,000 (Funds) by way of non-party consumer redress in the manner provided for in these orders. 12. These orders are for partial redress for loss and damage suffered in relation to the contravening conduct described in order 2 only to the extent provided for by these orders. 13. Within 21 days of the date of these orders, the applicant do file and serve an affidavit deposing to: (a) the expertise and experience of a proposed accountant to act in accordance with these orders; (b) the terms, including as to remuneration, upon which the proposed accountant is willing to be appointed under the terms of these orders, such terms to specify the maximum amount that the proposed accountant may charge for undertaking the appointment, subject to further order of the Court approving additional remuneration; and (c) a form of consent from the proposed accountant that he or she is willing to be appointed to act in accordance with these orders. 14. Upon being notified of an order by the Court that the proposed accountant is approved by the Court, the accountant (Accountant) shall notify the second and third respondents of the appointment and the second and third respondents shall within 30 days of such notice pay the Funds to the Accountant in the manner directed by the Accountant. 15. The Accountant shall arrange to hold any Funds in a trust account and shall administer the Funds in accordance with these orders. 16. Subject to order 17, any person who entered into a franchise agreement with the first respondent and paid monies in addition to a deposit and establishment fee to the first respondent for the purposes of fit-out and set-up of a Geowash outlet other than by payment of a fixed purchase price shall be entitled to make a claim for partial redress from the Funds (Redress Class). 17. The Redress Class shall not include SSS WA Services Pty Ltd, Tejinder Singh Chhina, Hardevinder Singh Randhawa and Sukdeep Singh in respect of payments concerning the South Fremantle/Beaconsfield Geowash franchise. 18. The applicant shall provide to the Accountant all such information in its possession as may assist the Accountant in notifying persons in the Redress Class of the terms of these orders. 19. The Accountant shall take reasonable steps to notify persons in the Redress Class of the terms of these orders, including by publication of a notice in a national newspaper and shall invite claims to be made by a specified date for payment of redress from the Funds. 20. Any person making a claim for redress from the Funds must provide a declaration substantially in the terms annexed to these orders on or before the specified date. 21. The specified date may be extended by the Accountant if in the opinion of the Accountant an extension is necessary in order to afford a reasonable time to any person in the Redress Class to make a claim. 22. Members of the Redress Class shall be entitled to a pro-rata distribution of the Funds (after paying the costs of the Accountant in accordance with these orders) to be calculated based upon the member's share of the total amount of payments made to the first respondent to establish the Geowash franchise (excluding payments by way of deposit or establishment fee) (Total Payments) by all members of the Redress Class who have made claims in accordance with these orders. 23. Within six months of the date of appointment, the Accountant shall provide a brief report and financial statement (Report) to the applicant, the second respondent and the third respondent setting out the proposed distribution of the Funds. 24. Within 14 days of receipt of the Report, the applicant shall apply to the Court for orders approving the proposed distribution of the Funds. 25. Upon approval by the Court of the proposed distribution, the Accountant shall arrange the distribution of the Funds in accordance with the Report. 26. The Accountant shall be entitled to payment of remuneration out of the Fund in accordance with the terms of the Court's approval of the appointment of the Accountant. 27. Within a reasonable time after the appointment of the Accountant, the applicant shall publish on its website the terms of these orders and details as to where persons in the Redress Class may make claims for redress from the Funds. 28. No person shall be bound to accept any payment from the Funds. 29. Any person accepting payment shall be at liberty to exercise such other rights that they may have, including any claim to loss or damage that exceeds any amount received from the Funds by way of partial redress. 30. No person is entitled to redress in an amount that exceeds 20% of the amount paid by that person to the first respondent in addition to a deposit and establishment fee for the purposes of fit-out and set-up of a Geowash outlet. 31. If there is a surplus in the Funds after distribution in accordance with these orders then the surplus shall be returned to the second and third respondents in proportion to their contribution to the Funds. Disqualifications 32. Pursuant to s 248 of the ACL, the second respondent is disqualified from managing a corporation for a period of five years. 33. Pursuant to s 248 of the ACL, the third respondent is disqualified from managing a corporation for a period of four years. Other orders 34. Until 10 years from the date of this order, a sealed copy of the reasons for judgment in Australian Competition and Consumer Commission v Geowash Pty Ltd (Subject to a Deed of Company Arrangement) (No 3) [2019] FCA 72 be retained on the Court file for the purposes of s 83 and s 137H of the CCA. 35. There be liberty to the applicant and the first respondent to apply to vary order 5. 36. There be liberty to the applicant to apply to vary orders 11 to 31. Costs 37. On or before 14 February 2019, the parties do file and serve a joint minute of proposed orders as to costs or separate outlines of submissions not exceeding seven pages as to the costs orders that should be made, together with any affidavit to be relied upon as to matters relevant to costs. 38. On or before 28 February 2019, the parties do file any submissions in reply as to costs. 39. Unless otherwise ordered, the question of costs be determined on the papers. Annexure Terms of Declaration for Completion by Parties Seeking Redress Contact details of person completing this claim form Full name: Telephone number: Contact email address: Residential address: Details of franchise agreement with Geowash [Provide details of the parties to the franchise agreement with Geowash, the date of entry into the franchise agreement and the premises for the Geowash outlet, if any] Details of the authority of the person completing this claim form [Provide details of the authority of the person to make a claim concerning payments made by the Geowash franchisee, such as director or secretary or shareholder of the franchisee] Details of payments to establish Geowash franchise outlet [Provide details of payments made to Geowash to establish a Geowash franchise outlet (excluding deposit and establishment fee), including date and amount of payment and attaching proof of payment such as bank statements, receipts or emails from Geowash] Type of agreement [Specify whether the arrangement made with Geowash was for (a) the payment of the costs of fit-out and set-up of the franchise site; (b) the payment of amounts based on estimated costs of fit-out and set-up; (c) the payment of a fixed purchase price; or (d) some other arrangement, specifying the nature of the arrangement] Declarations I declare as follows: 1 The information provided in this claim form is true and correct. 2 No refund or other payment has been received from Geowash by way of compensation in relation to the Geowash franchise the subject of this claim form. 3 I understand that if the claim is accepted and a payment is made by way of redress then any claim that may be made for loss or damage will be reduced by the amount accepted by way of partial redress. Signature: Date: IMPORTANT NOTICE Section 241 of the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth) provides that a person is bound by an order for redress if the loss or damage suffered to which the order relates has been redressed and the non-party consumer has accepted the redress and no claim, action or demand may be made or taken in relation to that loss or damage. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT COLVIN J: 1 Geowash Pty Ltd (Geowash) entered into franchise agreements with 18 franchisees who commenced trading as hand car wash and detailing businesses. It also made agreements with other parties who for various reasons did not commence trading. Two people had key roles for Geowash in negotiating the agreements: Ms Sanam Ali, the sole director of the company, and Mr Charles Cameron, the national franchising manager. 2 Geowash, Ms Ali and Mr Cameron have been found to have breached the Australian Consumer Law (ACL) and the Competition and Consumer Act 2010 (Cth) (CCA) in their dealings with franchisees. Geowash and Ms Ali have also been found to have contravened the ACL by making representations to prospective franchisees by means of the Geowash website. The detailed findings as to the contravening conduct are set out in my reasons in Australian Competition and Consumer Commission v Geowash Pty Ltd (Subject to a Deed of Company Arrangement) (No 3) [2019] FCA 72 (Liability Judgment). The Australian Competition and Consumer Commission (ACCC) now invites the Court to make orders by way of relief based upon those findings. 3 The ACCC seeks: (1) Declarations. (2) Pecuniary penalties. (3) Injunctions. (4) Disqualification orders that would prevent each of Ms Ali and Mr Cameron from managing corporations for a number of years. (5) Orders to redress loss or damage alleged to have been suffered by non-party consumers. (6) Orders for the Liability Judgment to be issued under a seal of the Court to facilitate the proof of those findings in other proceedings. (7) Costs. 4 Almost all of the relief sought is contentious. 5 For the following reasons there should be (a) declarations of contravention by Geowash, Ms Ali and Mr Cameron; (b) orders for substantial pecuniary penalties to be paid by Geowash, Ms Ali and Mr Cameron (well above those proposed by Ms Ali and Mr Cameron); (c) injunctive relief to the extent that it would have utility; (d) disqualification orders for a period of five years for Ms Ali and four years for Mr Cameron; (e) orders for Ms Ali and Mr Cameron to each contribute $500,000 to a redress scheme; and (f) orders to facilitate proof in other proceedings of the findings made in the Liability Judgment. 6 Counsel for Ms Ali and Mr Cameron maintained that submissions as to the costs of determining the appropriate orders for relief could not be made until after the orders to be made were known. There should be orders for submissions as to costs and any affidavits to be filed and for the question of costs to be determined on the papers. Overall characterisation of conduct 7 Broadly speaking, there were two aspects to the contravening conduct: unfair dealings with franchisees who entered into franchise agreements and misrepresentations on the Geowash website. Unfair dealings with franchisees 8 As to the manner in which Geowash, by Ms Ali and Mr Cameron, dealt with franchisees, the ACCC led evidence from seven people who were involved in dealings with Geowash. On the basis of that conduct, the ACCC sought to establish that Ms Ali and Mr Cameron used the same overall approach in concluding agreements with all prospective franchisees and in implementing those agreements. On the basis of consistencies in the evidence given by the seven individuals and the documentary evidence as well as aspects of the evidence given by Ms Ali and Mr Cameron that were consistent with the case advanced by the ACCC, I made general findings as to the nature of the dealings with most Geowash franchisees: Liability Judgment at [561]-[584]. 9 For the purposes of determining the nature and extent of relief that ought be granted, the overall character of that conduct may be summarised as follows. 10 First, Ms Ali and Mr Cameron took legal advice as to the structure of the franchise arrangements and the nature of the disclosure documents that were required. They understood that there was an obligation under the applicable laws to provide those documents and give effect to them in their dealings with franchisees. However, in their dealings with franchisees they disregarded those documents. The extent of divergence between the requirements of the franchise agreements, the disclosure documents and their actual dealings with prospective franchisees was stark. It is properly characterised as a complete disregard of the documents and the obligations that they imposed upon Geowash. The respondents adopted a methodology for charging franchisees and appropriating the funds received that was at complete odds with the fundamental structure of the franchise agreement and the disclosure document. 11 Second, although the major part of the franchise fees to be paid to Geowash was presented to franchisees as being an amount that was required to meet the cost to fit-out and set-up a site, when those fees were paid to Geowash, it treated the monies as general revenue of Geowash. The conduct of Geowash in doing so was known to Ms Ali and Mr Cameron by reason of their knowledge of the business practices of Geowash and the substantial amounts paid to them (or for their benefit) from those funds. In addition, it was known to Ms Ali because she was responsible for the financial records of Geowash. 12 Third, the dealings with franchisees were undertaken by establishing an amount that the franchisee was willing to pay and then presenting that amount as the actual cost to fit-out and set-up a site when in fact Ms Ali and Mr Cameron made no calculation or assessment of the likely actual cost and used a considerable proportion of the funds to cover a series of payments to be made to themselves by way of commissions. 13 Fourth, the extent of the commissions paid to Ms Ali and Mr Cameron (in the latter case received through a trust structure) was considerable. Therefore, they benefited financially to a considerable degree from the conduct. 14 Fifth, the parties who gave evidence risked much or all of their available financial resources on a Geowash franchise in circumstances where that position would have been known to Ms Ali and Mr Cameron. For the most part, those parties were relatively naïve in terms of small business experience and plainly trusting of what was said by Ms Ali and Mr Cameron. Indeed, dealings by Ms Ali with those individuals who gave evidence (and their business associates) were designed to engender trust and extract the most that those individuals might be willing to pay for a franchise. 15 Sixth, for the parties who gave evidence (and their business associates) there were serious financial risks because they were committing much of their available financial resources to Geowash and in a number of cases were borrowing considerable amounts in order to invest in a Geowash franchise. 16 Seventh, in consequence of their lack of business experience and the extent of their financial investment, the parties who gave evidence were plainly financially vulnerable. These matters were known to Ms Ali and Mr Cameron because the nature of their dealings with franchisees involved determining how much they had available to invest in a franchise and encouraging them to borrow for that purpose. 17 Eighth, the franchisees made a substantial personal commitment to their franchises. The establishment of a small business involves great personal effort and the commitment of a period of your life to the venture. Senior counsel for the ACCC described the conduct as having the consequence of crushing the entrepreneurial spirit by drawing people into an endeavour that required them to commit time, money and energy only to find that their money was not used to provide the level and quality of support justified by the extent of their investment. I accept that submission. 18 For the ACCC, it was also submitted that the conduct manifested a lack of morality or moral compass. I accept that submission. The stark difference between what was documented and what was done and the extent of commissions paid from funds to Ms Ali and Mr Cameron that were misrepresented as monies that were being deployed to meet the costs of fit-out and set-up for the franchise justify that description. These aspects have significance for specific deterrence and the extent to which Ms Ali and Mr Cameron should be ordered to make redress. 19 The conduct has been found to be both unconscionable and, as to dealings after 1 January 2015 with four franchisees, a breach of the duty of good faith imposed upon parties to a franchise agreement by the Franchising Code of Conduct. Both Ms Ali and Mr Cameron have been found to have been knowingly concerned in the conduct. Website misrepresentations 20 There were two parts to the contraventions as to material published on the Geowash website found in the Liability Judgment. The findings concerned conduct by Geowash and by Ms Ali as a party knowingly concerned in that conduct. First, false and misleading information was published about the revenue and profits that might be earned by Geowash franchisees. Second, false and misleading information was published concerning the affiliations between Geowash and various brands, suggesting they were clients of Geowash in Australia when that was not the case. 21 As to the first part, the conduct was quite blatant. Financial information from a single franchise for a relatively small period of trading was presented as annual revenue and profit figures that might be achieved by an average leading Geowash outlet. The figures formed part of a website that was plainly directed at encouraging people to become Geowash franchisees. The figures were annualised figures based upon actual figures for a month of trading for one franchise. There was no attempt to justify the figures as providing a reasonable basis for extrapolation. The nature of the information was known to Ms Ali and she was responsible for its publication. Any cursory examination of the statement published on the website would have revealed its inaccuracy to a person in the position of Ms Ali who knew the source of the information on which the statement on the website was based. 22 The conduct did not arise because of oversight or misunderstanding. The information was blatantly incorrect. It concerned a category of information that was likely to be highly persuasive for a prospective franchisee. Its publication manifested the same lack of moral compass that was evident in the dealings by Ms Ali with franchisees concerning the fees to be paid by them. 23 As to the second part, the information about various brands was plainly included on the website to engender trust in the standing and status of Geowash. The affiliation with major well-known brands was a means by which to present Geowash, a new business, as one with major support. There was no plausible explanation advanced for the inclusion of the information on the website by Ms Ali despite knowing that it conveyed a representation of the kind I have described which was not true. The conduct was blatant and displayed a willingness to make statements relevant to Geowash without any foundation. However, it concerned information of a kind that was likely to have a lesser significance to prospective franchisees than the statements about how much money they could make from a franchise. The position of Geowash 24 Geowash is in liquidation. It did not appear at the final hearing on liability and did not participate in the hearing as to relief. As a result, the ACCC does not seek injunctive relief or orders to implement a compliance program. It seeks other orders against Geowash principally for the purposes of general deterrence. Given its status it is appropriate at this stage for any orders as to penalties to be paid by Geowash to be stayed until further order. Explanations and mitigation by Ms Ali 25 Ms Ali provided an affidavit on the hearing as to relief. She was not cross-examined as to its contents. I accept that the following relevant matters are established by the affidavit: (1) Ms Ali is currently unemployed and does not have any source of income. (2) Ms Ali has no history of inappropriate behaviour as a company director. (3) Companies of which Ms Ali was a director that were referred to in the course of proceedings have now been deregistered. (4) Ms Ali remains as the sole director of Geowash and the insolvent administration of Geowash has now concluded save for matters relating to these proceedings. (5) Other than the matters raised in the present proceedings, no allegations or concerns have been raised about Ms Ali's conduct as a director of Geowash. (6) Ms Ali transferred about $400,000 from her personal bank accounts to Geowash accounts prior to its administration and transferred about a further $150,000 into its accounts in the course of the administration to assist in securing the opening of a number of Geowash outlets. (7) Geowash reached settlements with three of its franchisees, but the circumstances and terms of those settlement were not the subject of any detailed evidence. (8) Ms Ali does not intend to pursue any work in the franchising industry in the future. 26 Ms Ali has also been subject to adverse publicity as a result of the proceedings, the publication of the Liability Judgment and the making of press releases by the ACCC, all of which have led to reports of the proceedings that have referred to Ms Ali. As to the press release by the ACCC consequent upon the publication of the Liability Judgment, Ms Ali complains that the use of the word 'prosecuted' in that release led to media reports using the term prosecuted and that by reason of what she described as the false and inaccurate statement by the ACCC, she has been caused 'to suffer … further damage to [her] reputation that does not match the findings of the Court'. She says that has arisen because the use of the word prosecuted suggests falsely that the present proceedings featured allegations of criminal conduct. 27 The press release by the ACCC began: The ACCC has successfully prosecuted former hand car wash and detailing franchisor Geowash in the Federal Court for acting unconscionably, making false or misleading representations, and failing to act in good faith in breach of the Franchising Code of Conduct in relation to the sale and marketing of its franchises. 28 It concluded: A hearing to determine penalties and other orders sought by the ACCC will be on a date to be fixed by the Court. 29 The press release did not refer to criminal proceedings. The penalties described were consistent with the nature of the proceedings which sought civil penalties. However, the term prosecution used at the outset of the media release was prone to cause readers to conclude that the proceedings were criminal in character. 'In ordinary parlance "prosecution" identifies the instigation and conduct of a curial proceeding which commences with an accusation of a crime and involves the trial of that accusation concluding with a conviction or acquittal, and may include a committal proceeding': PT Garuda Indonesia Ltd v Australian Competition & Consumer Commission [2012] HCA 33; (2012) 247 CLR 240 at [29] (French CJ, Gummow, Hayne and Crennan JJ). The use of the word 'prosecution' by the ACCC in the press release was not apt. However, for the purposes of determining appropriate relief, the complaint about the press release is of minor significance. 30 As to Ms Ali's insight into the significance of the findings made in the Liability Judgment, Ms Ali deposed (paras 38 to 42): I am 34 years old. I will have to rehabilitate my reputation and attempt to rebuild a career in order to support myself and pay my current debts. My experience in being subject to the ACCC's investigation and these proceedings has been extremely personally difficult and expensive. I am aware that I cannot afford, if anyone ever can, to ever be the subject of allegations of regulatory breaches again. I intend to be completely honest in all future statements and representations in all of my future professional conduct. I am also aware that I will have to demonstrate standards of honesty and ethics beyond question in order to re-establish any sort of position of professional trust again. I want to learn more about regulatory compliance so that I can pursue my career without fear of being the subject of any allegations of misconduct again. 31 These statements expose a focus upon the consequences of Ms Ali's conduct for her own future. They do not indicate any real understanding or acknowledgment of the consequences for those people affected by her conduct. Ms Ali did say, somewhat blandly, that she understood that the Court's decision states that Geowash's dealings with franchisees were contrary to proper commercial standards and unconscionable under the ACL. She said that she had read the Liability Judgment in detail and understood the significance of the findings. However, statements of that kind contain no acknowledgment or recognition of the central role that Ms Ali played in the conduct that has been found to have breached the law. 32 The payments to Geowash made by Ms Ali prior to and during the administration do not manifest any remorse or contrition. They were attempts to revive Geowash. At the substantive hearing on liability, Ms Ali sought to justify and explain her conduct at some length by evidence which I did not accept. It is this posture which provides the best insight into her attitude to her conduct. The explanation provided for Ms Ali's failure to make any real statement accepting her personal responsibility was that she had received legal advice 'against going over any issues from my previous affidavit where the Court has not accepted my statements of my intention [in] operating Geowash'. Implicit in that statement is a refusal to accept the findings made. 33 Nevertheless, Ms Ali is relatively young and inexperienced as a businessperson, despite her claims to the contrary in the course of the proceedings. The consequences of these proceedings have the potential to loom large for her future prospects and it is necessary to ensure that they are appropriately deterrent, not crushing. Explanations and mitigation by Mr Cameron 34 Mr Cameron also provided an affidavit and was not cross-examined. On the basis of that affidavit I accept that the following matters relevant to relief have been established: (1) Mr Cameron has been subject to adverse publicity as a result of the proceedings, the Liability Judgment and press releases by the ACCC which have been matters reported in the media and remain accessible on the internet. (2) Mr Cameron has no adverse history as to his conduct as a director of any company. (3) Mr Cameron was not a director of Geowash. (4) Mr Cameron does not intend to attempt to work further in the franchising industry. 35 As to his financial capacity to meet any penalty order, Mr Cameron did not disclose his full financial circumstances. This is significant in the context of evidence at the substantive hearing on liability to the effect that payments to which he was entitled from Geowash were actually paid to the trustee of a family trust. There is no evidence provided as to the circumstances of that trust or other financial resources available to Mr Cameron. His affidavit was confined to the extent to which he is currently earning income from his own personal exertion. He says he has not attempted to go for job interviews because of a concern that disqualification orders would end any employment. However, any such order would relate only to his involvement in the management of a corporation. 36 Mr Cameron says that he has been attempting to work as a sole trader but establishing himself has been difficult and he has failed to generate any profit. He provides no detailed information to support these general statements. 37 It is not possible to draw from this evidence any conclusions as to Mr Cameron's overall financial circumstances. 38 As to his conduct and its seriousness, Mr Cameron said that on the basis of legal advice he did not want to say anything that 'goes across' matters addressed in his earlier affidavit or the Liability Judgment. He said nothing about his conduct, the financial benefit he obtained from that conduct or the consequences of the conduct for franchisees. Instead he confined his evidence to his future conduct. He deposed as follows (at paras 32 to 34): I intend for all future conduct in employment or any form of trade or commerce to be honest and fully compliant with all eithical [sic] and regulatory obligations. I am committed to learning what I can about regulatory compliance and doing my best to rehabilitate my professional reputation to the extent that I can in any remaining time in my career. My experience with Geowash and in these proceedings has made it clear to me that even a suggestion of wrongdoing is enough to ruin a career. The experience of being investigated has also been personally painful and financially devastating. I intend to conduct myself in all future dealings to be beyond rapproach [sic]. 39 Mr Cameron did not deal with the extent of his involvement in the contravening conduct. Although he was not a director, he was the national franchise manager and a central player in the unfair dealings with franchisees. He knew the character of the way Geowash dealt with franchisees and received substantial commissions (and directed them to a family trust). He undertook a role at a senior management level within Geowash. Procedural steps since Liability Judgment 40 The Liability Judgment was published on 8 February 2019. At that time, the ACCC was ordered to file a minute of the declarations and orders that it sought by 1 March 2019, extended by consent to 8 March 2019. A minute of those orders was not filed until 3 April 2019. The minute included a claim for orders that Ms Ali pay an amount of $1,766,305 and Mr Cameron pay an amount of $1,386,729 into a consumer redress fund to be managed by a partner of an independent accounting firm. A general claim to an order for redress had been included in the original substantive application by the ACCC. It had provided no details as to the nature of the order sought. The minute of 3 April 2019 said that further details would be provided prior to the hearing on relief. As the minute did not specify the precise terms of the redress order that was sought nor did it disclose the basis upon which that order was said to be appropriate, on 4 April 2019 I directed that the ACCC provide a minute of the relief sought as to consumer redress and a statement of the grounds upon which that relief was sought by 23 April 2019. As the ACCC foreshadowed an application to amend its originating application, I also ordered that any such application be filed by the same date. 41 A minute of proposed orders as to redress and grounds for those orders was filed in accordance with my directions. The minute proposed orders for the payment of the amounts stated above into a fund to be administered by an independent accountant whose fees would be met out of the fund. It proposed that all past and present Geowash franchisees be notified of the existence of the fund and the substance of the Liability Judgment and be invited to 'provide proof of the loss and damage suffered as a result of the [conduct described in the Liability Judgment]'. The proposed orders provide for the accountant to determine the amounts to be refunded to each franchisee who made a claim by determining the amount of loss or damage suffered or by referring that question to the Court. The orders contemplate a report being prepared by the accountant as to distributions from the fund for approval by the Court. The proposed orders state that no franchisee shall be bound to accept any payment offered from the fund and may be at liberty to exercise any other rights. 42 The grounds for the redress orders were said to be findings made in the Liability Judgment to the effect that sales commissions paid by Geowash to Ms Ali and Mr Cameron were amounts to which they were not entitled under the franchise agreements and so deprived the franchisees of those funds being applied to the fit-out and set-up of their franchise premises. Further, reliance was placed upon findings concerning the amounts received and retained by each of Ms Ali and Mr Cameron from Geowash over the period 2012 to 2016. Corresponding amounts were sought by the ACCC to be paid into the redress fund. 43 In written submissions filed on behalf of Ms Ali and Mr Cameron for the relief hearing, a number of complaints were raised about the proposed redress orders. It was said that there was no basis for concluding that loss or damage had been suffered. It was said that any quantification of loss would require a comparative assessment of the value of the business delivered by Geowash which the franchisees had continued to operate, and the amount contributed. It was suggested that the franchisees by accepting their franchises and continuing to operate them had elected to affirm the agreements despite the conduct by Geowash. It was further submitted that the orders sought were beyond power because they purported to delegate to the accountant the judicial task of assessing any loss or damage. Also, it was said that settlements had been reached between Geowash and some franchisees and the proposed redress scheme and claims by those parties had been compromised. Claims were being pursued by Geowash against other franchisees for outstanding franchise fees. All these matters were advanced to support an overall submission that redress could not be ordered in the manner contemplated. A separate submission was made to the effect that the orders proposed were novel and outside the recognised scope of the power conferred by s 243 of the ACL. 44 At the penalty hearing, I raised with senior counsel for the ACCC concerns about the complex nature of the task proposed to be undertaken by the accountant and the lack of focus for the proposed assessment of loss and damage in circumstances where those matters were not addressed in the Liability Judgment. Further, it was not a scheme of a kind that sought to effect some form of refund of monies received by those involved in the contravention. These concerns were made plain by submissions advanced for the ACCC to the effect that it was anticipated that benefits derived under franchise agreements by those who made claims against the redress fund would be taken into account in assessing the claims. 45 I contrasted the proposed orders with a scheme that invited franchisees to identify the extent of what they paid to Geowash for the purpose of seeking a pro-rata share of an amount assessed to be amounts received Ms Ali and Mr Cameron as commissions. In such a case there would be a refund of amounts received by Geowash that should have been applied to fit-out and set-up, but were instead applied to the payment of commissions to Ms Ali and Mr Cameron. 46 Faced with those matters, senior counsel sought an opportunity to reconsider the form of the proposal outlined in the minute of orders. The ACCC then proposed revisions to its minute of orders as to redress that would take the form of a pro-rata refund. It did not propose any change to the grounds upon which it sought those orders. Therefore, the basis upon which the orders were sought remained the same, the amount sought to be contributed remained the same, the arrangement for the appointment of an accountant to implement the scheme remained the same, but the form of the redress scheme as to the determination of the amount of monies to be distributed as between franchisees was changed. 47 Counsel for Ms Ali and Mr Cameron opposed the Court entertaining any such revision to the proposed orders. After hearing argument, I determined that I would allow the ACCC to proceed with the application for relief on the basis of the revised minute as to redress. I gave short oral reasons for doing so. They were expressed in the following terms: In this matter I propose to allow the ACCC to proceed with the application on the basis of the revised minute as to the proposed redress scheme. I do that principally because the nature of these orders is such that there is a wider public interest associated with them that extends not just to the franchisees, but also to the public more generally in relation to proceedings of this nature, and I view the changes that have been made as changes which do not open up an entirely new approach, but which refine and confine the orders in respects that are to deal with matters raised in submissions to this point. Having expressed those views I recognise that [there] would be prejudice to the respondents if they were required to proceed to answer the changes at the hearing today. … I propose to make directions in order to minimise that prejudice to afford the respondents the opportunity to put on additional submissions in writing in response to the proposed redress scheme, and for the matter to be dealt with on the basis of those written submissions. I will reserve liberty to apply for an oral hearing if the respondents seek to have that occur. And I also will reserve the position in relation to any application for costs associated with the change … . 48 Otherwise, oral submissions were heard on all other aspects of the relief sought by the ACCC. Further submissions were then filed on behalf of Ms Ali and Mr Cameron. No request was made for a further oral hearing. The ACCC filed submissions in reply concerning the proposed redress orders. 49 The submissions filed for Ms Ali and Mr Cameron included detailed submissions as to why leave to amend the redress minute should be refused. These submissions were misconceived. They treated the application in relation to the redress scheme as if it was (or should have been) an application to amend the originating application. It was not (and did not need to be). The originating application had included from its inception an application for an order that the respondents pay non-party consumer redress pursuant to s 239 of the ACL. At no stage did the respondents raise any submission to the effect that the redress orders could not be sought in the terms proposed by the ACCC unless there was an amendment to the application. In those circumstances, the precise terms in which such relief might be granted was a matter for submission. As a matter of fairness to the respondents, orders were made requiring the ACCC to state precisely the orders sought and the grounds on which those orders were sought prior to the hearing as to relief. Orders of such kind are frequently made as part of the process of effective case management of proceedings. It is to be noted that the minute of orders as to relief was required to be filed by reason of orders made at the time of delivery of the Liability Judgment and not in consequence of any application by the respondents. 50 Until the filing of the additional submissions, it was not suggested by the respondents that leave was required to amend the originating application in order for a particular form of redress scheme to be sought by the ACCC. I do not accept that any such amendment to the application was required. 51 There is no application by Ms Ali and Mr Cameron for any order that would revoke or alter my earlier orders. A limited application is made to revoke the orders if they are to be treated as the grant of an application to amend the originating application. However, for reasons I have given, the orders made allowing amendment to the minute of orders were not concerned with amendment to the originating application. 52 Therefore, the submissions advanced on the mistaken premise that without an amendment to the application the ACCC is unable to seek redress orders in terms of the revised minute require no further consideration. Application by ACCC to amend 53 As I have noted, the ACCC does seek to amend its application in one respect. As to disqualification from managing a corporation, the originating application sought orders disqualifying each of Ms Ali and Mr Cameron for a period of five years. The amendment sought would increase the period for Ms Ali to 10 years and for Mr Cameron to seven years. 54 For the following reasons, the application to amend should be refused. 55 The submission advanced for the ACCC in support of the application was that a different view of the seriousness of the conduct of Ms Ali and Mr Cameron emerged in the course of the final hearing on liability. It was said that the evidence demonstrated a complete absence of insight on their part in relation to any wrongdoing and the consequences for individual franchisees. 56 The ACCC did not move for the amendment in the course of the final hearing or at any time before the Liability Judgment was published. As to Ms Ali, her evidence was heard in June and then the trial was adjourned until September which provided a considerable period in which assessments as to whether an amendment might be sought on the basis of that evidence could have been made. There is no explanation for the delay in seeking the amendment. 57 Where, as here, there is a separate hearing on liability followed by a hearing as to the appropriate relief to be granted, the Court should be conscious of the potential for serious unfairness to respondents if there are changes to the extent of relief sought after the parties have conducted a hearing dealing with the nature of the conduct. The ACCC relies upon the findings in the Liability Judgment to support its claims for long disqualifications. Those matters were contested in circumstances where particular lengths of disqualifications were sought. 58 The nature of the proceedings are such that they raise serious allegations with the potential for significant consequences for the respondents. 59 In all the circumstances there is potential for unfairness to the respondents if the amendments were allowed at this late stage and for that reason the application should be refused. Declarations 60 As to declaratory relief, two matters are raised on behalf of Ms Ali and Mr Cameron. 61 The ACCC proposed relief in terms that would declare that each of Ms Ali and Mr Cameron caused Geowash to engage in contravening conduct in which they were knowingly concerned. It was submitted that a declaration expressed in those terms went beyond the findings that had been made in the Liability Judgment. I found that Ms Ali and Mr Cameron were the architects of the business practices that were followed by Geowash in dealing with prospective franchisees, they were the principal actors and the principal beneficiaries: at [767]. Therefore, it is accurate to describe the nature and extent of their knowing participation as having caused the contravening conduct of Geowash. It is appropriate for declaratory relief to be expressed in terms that reflect the specific factual context. For those reasons, it is appropriate for the declaratory relief to be expressed in the terms sought by the ACCC, save that I would add the word 'thereby' to make clear that that actions in causing the contraventions was the respect in which Ms Ali and Mr Cameron were each knowingly concerned in the contraventions by Geowash. 62 Alternate terms of the proposed declaration to the effect that the conduct of Geowash involved a contravention of the Franchising Code of Conduct were proposed on behalf of Ms Ali and Mr Cameron in the interests of clarity. I accept that the declaration should be in the terms proposed by them for that reason. 63 Otherwise, I am satisfied that it is appropriate for declaratory relief to be ordered in the terms sought by the ACCC. The principles to be applied were summarised in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 (CFMEU) at [90]-[93]. The proposed declaratory orders reflect the extent of the findings made in the Liability Judgment. They will serve to record the Court's disapproval of the conduct, inform others of the nature of the contravening conduct and assist in deterring others from engaging in similar conduct. Disqualification Orders 64 The ACCC seeks disqualification orders for a period of five years that would prevent each of Ms Ali and Mr Cameron from managing a corporation. Power to grant such relief is conferred by s 248 of the ACL if the Court is satisfied that the disqualification is 'justified'. 65 The usual practice has been for the question of any disqualification order to be decided before deciding on the imposition of a pecuniary penalty: Australian Securities and Investments Commission v Citrofresh International Ltd (No 3) [2010] FCA 292 at [15] (Goldberg J). If such an order is imposed then the Court will grant the further order of a pecuniary penalty in that context and will do so only if it considers the disqualification would be inadequate if it was the only penalty. 66 The matters to be considered do not appear to be in dispute. The provision is modelled on similar provisions in the Corporations Act 2001 (Cth): Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 2) [2012] FCA 535 (Tracey J). The principles to be applied under those provisions are to be found in the summary by Santow J in Australian Securities and Investments Commission v Adler [2002] NSWSC 483 as approved by McHugh J in Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129. 67 In Rich, McHugh J noted the following at [43] in relation to the approach adopted by Courts in deciding whether to make a disqualification order: In exercising their discretion, however, courts which administer the legislation do not concern themselves solely with the issue of whether the defendant now is or in the future will be a fit and proper person to manage corporations. They take into account a wide variety of factors in addition to determining whether any and, if so, what period of disqualification should be imposed. They consider more than the present and future fitness of the defendant to manage corporations. They take into account factors such as the size of any losses suffered by the corporation, its creditors and consumers, legislative objectives of personal and general deterrence, contrition on the part of the defendant, the gravity of the misconduct, the defendant's previous good character, prejudice to the defendant's business interests, personal hardship and the willingness of the defendant to render assistance to statutory authorities and administrators. No doubt some - maybe all - of these matters are relevant in determining whether the defendant ought to be disqualified or the period of disqualification that is required in order to protect the public. But in practice courts do not use these matters merely as evidentiary indicators of the time when the defendant will, if ever, be fit to manage corporations. Rather, they become part of a synthesis from which the judges make a value judgment concerning whether to order disqualification and, if so, the period of disqualification that should be imposed. It is not the practice of judges to say: 'On the evidence, I find that after (say) five years, the defendant will be sufficiently reformed to make it safe for him or her to manage corporations.' This suggests that the disqualification provisions are not purely protective in nature. 68 The other members of the Court simply recognised the possibility that proceedings in which a disqualification order is sought may be described as having 'a purpose of protecting the public': at [35]. No part of their joint reasons confined the purpose of such orders to that singular aspect. 69 The approach in Adler has been adopted in considering whether to grant orders under s 248 and, if so, in determining the duration of such orders: see, for example, Halkalia and the decision of Yates J in Australian Competition and Consumer Commission v SensaSlim Australia Pty Ltd (in liq) (No 5) [2014] FCA 340 at [59]-[60]. The first matter stated is that such orders are designed to protect the public from the harmful use of corporate structures or from use that is contrary to proper commercial standards. 70 It was submitted for Ms Ali and Mr Cameron that there was no nexus between the remedy of disqualification and the impugned conduct. It was said that it had not been demonstrated that the corporate structure of Geowash had been used in a manner that is contrary to commercial standards. I do not accept that submission. The franchising venture was conducted through Geowash, a vehicle established for that purpose by Ms Ali. The conduct concerned fundamental aspects of its dealings with franchisees. The franchisees entered into agreements with Geowash and the conduct concerned both the making and performance of those agreements. The submission appeared to be advanced on the basis that it was not the contravening conduct that led to the insolvent administration of Geowash. This submission misunderstands the required use of the corporation that enlivens the disqualification discretion. Those dealing with corporations are entitled to expect that they will conform with the statutory obligations imposed by the ACL. Geowash was the vehicle for the contravening conduct and both Ms Ali and Mr Cameron were involved in senior management roles that directed those activities. 71 It was submitted that disqualification orders would unfairly limit ongoing lawful activities by Ms Ali in respect of other corporations. However, the evidence was to the effect that the activities of other corporations were being brought to an end. To the extent that future activities of Ms Ali would be restricted that is a reasonable and fair consequence having regard to the nature and seriousness of the conduct of Ms Ali. 72 There is no evidence of any particular financial consequence for Ms Ali or Mr Cameron of not being able to involved in the management of any corporation. In particular there is no evidence of existing employment or any particular employment opportunity that will be affected if the proposed orders are made. In any event, I give little weight to the statements made by Ms Ali and Mr Cameron concerning their future conduct. The disqualification orders are justified by the need to protect the interests of members of the public and the nature of the contraventions. Given the nature and character of past conduct there remain risks of future contravention. In the circumstances of this case they are justified by concerns of specific and general deterrence. 73 I accept that by reason that Mr Cameron was not a director or shareholder of Geowash a somewhat lesser disqualification is justified in his case. 74 There should be a disqualification order for five years in the case of Ms Ali and four years in the case of Mr Cameron. Pecuniary penalties 75 The ACCC sought pecuniary penalties totalling $3,000,000 against Geowash, $1,500,000 against Ms Ali and $1,000,000 against Mr Cameron. 76 As to the unfair dealing conduct, it was found to be both unconscionable and a breach of the obligation of a franchisor to deal in good faith with a franchisee. The unconscionable conduct contravened s 21 of the ACL and the breach of the good faith obligation contravened s 51ACB of the CCA. 77 The maximum penalty for a contravention of s 21 of the ACL at the relevant time was $1,100,000 for a body corporate and $220,000 for a natural person. The maximums applied for 'each act or omission': s 224 of the ACL. In determining the appropriate penalty the Court must have regard to (s 224(2)): (a) the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; and (b) the circumstances in which the act or omission took place; and (c) whether the person has previously been found by a court in proceedings under Chapter 4 or [Part 5-2] to have engaged in any similar conduct. 78 There is express provision to the effect that where conduct constitutes a contravention of two or more provisions that attract civil penalties under the ACL, a person is not liable to more than one penalty in respect of the same conduct: s 224(4)(b). 79 The maximum penalty for the relevant contravention of s 51ACB of the CCA was 300 penalty units: s 51AE(2) of the CCA and cl 6 of the Franchising Code of Conduct. Therefore, until 30 July 2015, the maximum was $51,000 and thereafter, until 30 June 2017, the maximum penalty was $54,000. A penalty up to that level may be imposed 'in respect of each act or omission by the person … as the Court determines to be appropriate having regard to all relevant matters including the nature or extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found … to have engaged in any similar conduct': s 76(1) of the CCA. There is also a provision to the effect that conduct that contravenes two or more provisions is only susceptible to one penalty under s 76 in respect of the same conduct: s 76(3). 80 The two penalty regimes under s 224 of the ACL and s 51AE of the CCA are distinct. Therefore, this is not an instance where the same conduct is alleged to contravene two or more provisions of the same regime. 81 As to the website misrepresentations, each involved contraventions for which penalties may be imposed pursuant to s 224 of the ACL. The maximum penalties were $1,100,000 for corporations and $220,000 for individuals. 82 It is the whole of the contravening act that may give rise to the liability to pay a civil penalty. In the case of unconscionable conduct, the contravening act is conduct that meets the statutory description of 'unconscionable'. It is not a single action or event. There is no contravention and therefore no penalty unless the whole conduct has the requisite character. Therefore, it will be necessary to consider the nature of the case advanced and established in order to determine whether it involves more than one contravening act, relevantly more than one instance of unconscionable conduct. 83 In the case of the obligation of good faith, the requirement imposed is that each party to a franchise agreement act towards another party with good faith. Again, the whole of the conduct said to comprise the breach of the obligation is the relevant act. Each such act may attract the maximum penalty. It is necessary to consider the nature of the case advanced and established in order to determine the number of breaches of the obligation and therefore the maximum penalty that may be imposed. 84 It was common ground that the misrepresentations comprised two separate acts, namely (a) the revenue and profit representations; and (b) the brand affiliation representation. On that basis, each may attract a separate penalty. 85 Where a case has been alleged and proved of a number of contraventions of the same provision, but they are considered to form part of a single course of conduct or the same transaction then the overall penalty may be assessed on that basis. The approach that might be adopted was explained by Middleton and Gordon JJ in Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 in the following terms at [39]: It is a concept which arises in the criminal context generally and one which may be relevant to the proper exercise of the sentencing discretion. The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is 'the same criminality' and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions. (original emphasis) 86 Further, at [41]: … the principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, the Court must ensure that the offender is not punished twice for the same conduct. In other words, where two offences arise as a result of the same or related conduct that is not a disentitling factor to the application of the single course of conduct principle but a reason why a Court may have regard to that principle, as one of the applicable sentencing principles, to guide it in the exercise of the sentencing discretion. It is a tool of analysis which a Court is not compelled to utilise. (citations omitted; original emphasis) 87 Importantly, the principle must be weighed with other considerations. As their Honours said at [42]: It is a matter of judgment to be exercised according to the facts of each case and having regard to conflicting sentencing objectives … For the same reasons, … even if offences are properly characterised as arising from the one transaction or a single course of conduct, a judge is not obliged to apply concurrent terms if the resulting effective term fails to reflect the degree of criminality involved. Or, in the case of fines, a judge is not obliged to start from the premise that if there is a single course of conduct, the maximum fine is [the maximum amount for a single offence]. 88 Therefore, it is not the case that a single course of conduct means that the penalty must be within the maximum for a single penalty. It is only where there is a single contravening act that the whole of the conduct constituting the contravention is amenable to one penalty that must be within the maximum for a single contravention. 89 Where there is distinct conduct comprising separate contraventions, there is also a principle of totality to be brought to account in ensuring that there is not undue or double punishment for the overall nature of the contraventions by reason of the aggregate maximum penalties for a number of related contraventions. 90 The process of fixing an appropriate penalty requires regard to all relevant matters. In addition to those specified in the statute (to which there must be regard), there are many other considerations which, depending upon the circumstances of the particular case, may have significance for assessing an appropriate penalty: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285 and Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liq) [2007] FCAFC 146; (2007) 161 FCR 513. It is a discretionary judgment to be exercised based on all relevant factors in the particular case. It requires an overall assessment, not a mathematical exercise: Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2015] FCAFC 118. 91 Save for instances where there is a joint submission as to an appropriate penalty, it is doubtful whether the Court is permitted or required to impose a single penalty in respect of multiple contraventions: CFMEU at [145]-[149]. 92 Fixing a civil penalty, like the process of sentencing in a criminal proceeding, involves a process of instinctive synthesis of all the relevant factors, some of which are conflicting and contradictory: Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20 at [54] (citing Middleton J in Cahill at [250]-[251]); and Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181 at [44]. It requires identification of the factors of particular importance and explanation of the aspects of the contravening conduct that make the penalty appropriate: Australian Competition and Consumer Commission v Multimedia International Services Pty Ltd [2016] FCA 439; (2016) 243 FCR 392 at [72]-[73]. 93 Finally, it is important to consider the nature of the case advanced against the party found to have contravened. If the case alleged is of a single act or a number of acts that form part of the same conduct, then the penalty is to be assessed on that basis. It is not open to the ACCC to recast the nature of the case at the stage of assessing penalty and claim that the maximum penalty applies on the basis that there was separate conduct. Deterrence 94 The purpose of a civil penalty is primarily, if not wholly, protective in promoting the public interest in compliance with the law. Civil penalties put a price on contravention to deter repetition by those involved in the particular contraventions and by others who may be tempted to act in a similar manner: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 at [55] applying the reasoning of French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076. Therefore, penalties have both a general and specific deterrence purpose. 95 Penalties must be set having regard to the level of financial gain that might be secured through contravention: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission at 294-295. The level of possible gain depends to a significant degree upon the extent to which proceedings are likely to be brought against the contravening party. If an assessment is made that the conduct will not lead to that consequence then there is a temptation to pursue the returns that might be earned through contravening conduct. The civil penalty is to be set to deter those engaged in trade and commerce 'from the cynical calculation involved in weighing up the risk of penalty against the profits to be made from contravention': Singtel Optus Pty Ltd v Australian Competition & Consumer Commission cited with approval in Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 at [65]-[66]. 96 The consequence is that in assessing penalty it is important to have regard to a general understanding of the level of returns that might be thought to be obtained by engaging in similar conduct as well as what was gained from the conduct in the particular case. 97 Further, clandestine conduct of a kind that is difficult to uncover that harbours the prospect of considerable gains will require substantial penalties to secure deterrence. There may even need to be penalties that are greater than the profits that might be earned in the particular case because the low prospect of discovery means that the few cases where proceedings are brought may be seen as a cost of securing greater returns in cases which are not discovered. In other instances, the contravening conduct may be in the open in the sense that its character is evident from the nature of dealings with third parties who can raise complaint. In such cases, it may not be the clandestine nature of the conduct but rather imbalances in financial standing and access to legal or commercial advice that may both facilitate the conduct and make it less likely to be scrutinised. So too, instances where the contravening conduct involves engendering a sense of trust may make complaint less likely. Although such conduct is, in one sense, in the open, the vulnerability of one party may be an aspect that makes the conduct of a kind which may lead to potential gain without the risk of being brought to account. Therefore, the extent to which the conduct involves an exploitation of such imbalances and their potential to generate gains through contravening conduct is an important part of assessing the level of civil penalty that is required in order to fulfil the primary object of deterrence. 98 In the present case, the available evidence was to the effect that potential Geowash franchisees were inexperienced business people seeking to establish a small business. They were investing a substantial amount of their available financial resources and were being encouraged to borrow funds to meet the franchise fees. Most franchise business models depend to some degree upon the franchisor offering an established business model with a reputation, systems and support that provides a ready-made business with less risks than might be involved in establishing a small business from scratch. Some involve licensing technology or trade secrets. Some may be complex businesses that require substantial expertise and very large capital investments. The Geowash model was not of that kind. The business model was simple. It involved hand washing of cars. What was offered by Geowash was a brand and system together with the establishment of a site where the business could operate. The business did not require particular skills to undertake. 99 Franchisors in similar circumstances to Geowash will be dealing with prospective franchisees who are relatively inexperienced in business. They will be offering, in effect, an arrangement by which to reduce the risks of establishing a new business and share the rewards in doing so through the payment of franchise fees. People who consider franchise arrangements for the conduct of a relatively simple business may be expected to be commercially naïve as to the full nature and extent of the commercial risks involved and in that sense vulnerable. They are also vulnerable to overstatement and misrepresentation about the earning potential of such businesses and the extent to which establishment costs may produce fruit in terms of returns. 100 The nature of the unfair dealing conduct in this case was facilitated by the fact that Geowash was responsible for receiving and applying funds towards the stated purposes, namely fit-out and set-up of the franchise premises. Franchisees were dependent upon the fair and honest appropriation of those monies to that end. Significantly, in some instances franchisees who pressed for information about where the fees were spent were not provided with that information. Indeed, Geowash had no means of providing that information because it kept no records to enable it to do so. The lack of any proper account keeping was both a manifestation of the contravention and a means of obscuring that it was occurring. Details of actual expenditure were not and could not be provided to franchisees. 101 The nature of the website conduct was that it involved statements about matters well-known to Geowash that could not be verified by prospective franchisees and that they were invited to rely upon in making their decision whether to enter into a franchise agreement. 102 Therefore, although the nature of the contravening conduct involved open dealing with franchisees (rather than clandestine conduct), the essence of the breach involved engendering trust on the part of franchisees about matters peculiarly within the knowledge of Geowash. It was conduct of a kind that could produce significant gains with limited risk of discovery. It was not conduct that might be characterised as accidental or arising from a failure to understand the specific application of the law in a particular context or a failure to adhere to compliance procedures despite efforts by a party to ensure compliance. 103 These aspects of the nature of the conduct are such that penalties need to be set so as to denude the contravening party of the benefit of its repetition by the contravening parties in this case and by others who might contemplate engaging in similar conduct. 104 The ACCC advanced submissions based upon the significance to the Australian economy of franchise businesses in general. In my view, these matters were raised at too general a level. The task is to consider what is required to deter the respondents and others from engaging in conduct of the kind engaged in by the respondents in the present case. The conduct involved dealing with a particular type of person in respect of a particular type of small business franchise. There were particular risks and vulnerabilities that arose that must be considered in setting the penalty. Therefore, the extent of franchise business dealings that might be at risk of being the subject of the kind of conduct evident in the present case is considerably less than the extent of the franchise industry as a whole. Nevertheless, I am satisfied from the evidence as to the extent of franchise businesses that considerations of general deterrence are of considerable significance in assessing an appropriate penalty. 105 The unfair dealing conduct was blatant, serious, deliberate and sustained over a number of years. It exploited the trust of franchisees, it disregarded the terms of the disclosure documents and franchise agreements required by the Franchising Code of Conduct. Its fundamental character as a means of extracting commissions from payments obtained from franchisees on the basis that they would be applied to fit-out and set-up costs was known to both Ms Ali and Mr Cameron throughout. They both enjoyed significant personal gains from the conduct and there has been no demonstrated insight, remorse or contrition. 106 The website conduct was blatant, it concerned matters that were likely to be important to franchisees when making their decision whether to enter into a franchise agreement, it involved making statements without any basis at all and Ms Ali has demonstrated no insight, remorse or contrition as to the conduct. There is no basis to conclude that the website statements induced any particular franchisee to commit to a franchise agreement or that there was any particular benefit that was secured by Ms Ali from the conduct. The dealings with franchisees were such that a person responding to information on the website would then be involved in dealings with Ms Ali or Mr Cameron or both with a view to securing their entry into a franchise agreement. On the evidence, at that stage it was the unfair dealing conduct that was likely to have the operative effect upon their decision to enter into the agreement. Therefore, it has not been demonstrated that the website conduct achieved anything more than inquiries from prospective franchisees. In particular, it has not been shown that the representations as to revenue and profit influenced any particular franchisee to enter into an agreement with Geowash. If that had been the case then the conduct would have assumed a vastly different character. Size of Geowash 107 Geowash was not a substantial business. Its total income during the relevant period was of the order of $3,500,000 and it operated through only 18 franchisees that conducted small businesses at single sites. It took legal advice as to its standard disclosure documents and franchise agreements. However, the issues that arose in the case were not with those documents, but with the conduct of Geowash through Ms Ali and Mr Cameron that diverted from the terms of those documents. Dishonesty 108 The unfair dealing conduct is properly characterised as deliberate and depended upon telling franchisees that their franchise fees would be applied to fit-out and set-up when in fact a large amount of those payments were paid as commissions. The conduct was dishonest. Cessation of conduct 109 The website conduct ceased when the ACCC commenced its investigation. However, Ms Ali and Mr Cameron sought to justify their conduct at the final hearing on liability. This is not a case where there has been self-reporting or a full and frank acknowledgment of the nature and significance of the contravening conduct, matters which might significantly mitigate penalty had they occurred. Insight, contrition and remorse 110 It was submitted that it should not be found that there was a lack of insight, remorse or contrition on the part of Ms Ali and Mr Cameron for three reasons. First, as to the website conduct, it was said that the conduct ceased when the ACCC commenced its investigation. However, beyond that bare fact there was no evidence to indicate that Ms Ali and Mr Cameron understood the inappropriateness of that conduct. Second, it was said that in some instances Geowash reached settlements with franchisees that had raised complaint. As I have noted, the terms of settlement and the circumstances in which they were reached were not the subject of evidence. The bare fact that settlements were reached does not demonstrate any acknowledgment of culpability. Indeed, there was some evidence that claims were made by Geowash against franchisees that led to settlement. Third, it is said that Ms Ali and Mr Cameron have a right not to directly address the findings that they engaged in unlawful conduct or that they were dishonest, but have expressed an intention to adopt high ethical standards and educate themselves as to their future conduct. I have already dealt with that evidence. Respondents who choose to maintain that their conduct was proper in the face of court findings to the contrary do not express insight, contrition or remorse. Penalties are properly set by reference to the court's findings and the manner in which respondents address those findings. Protests of innocence at that point do not mean that findings as to a lack of insight, remorse or contrition cannot be made. 111 It was submitted that no franchisee was driven out of business by the conduct of Geowash. That may be so (it is not a matter addressed by the evidence). However, it is not the nature of conduct for which penalties are being imposed. It relates to the manner in which amounts paid by franchisees to Geowash were obtained and then appropriated and the nature of statements made on the Geowash website. Extent of personal gain 112 In addition to establishment fees and the fees that were paid to cover fit-out and set-up costs, the franchise agreement provided for other fees (although the evidence did not indicate that substantial income was received by Geowash from such other fees). The franchise agreements allowed for ongoing fees to be paid by Geowash franchisees based upon their level of sales. If a network of franchisees had been established then there would have been a significant ongoing income stream generated for Geowash from these fees. It was the potential for this ongoing income that was the true nature of the business opportunity. Instead, a considerable part of the monies obtained from franchisees for the purpose of setting up their franchise premises were diverted to Geowash and used to meet its own general operating costs and to pay the commissions to Ms Ali and Mr Cameron. It is the payment of these commissions that was the extent of the personal gain to Ms Ali and Mr Cameron from the contravening unfair dealing with franchisees. 113 Geowash paid considerable commissions to Ms Ali and Mr Cameron. In the Liability Judgment I found that of the funds received by Geowash in the period from 2012 to 2016, Ms Ali received and retained $1,766,305, Mr Cameron received and retained $199,631 and his wife received and retained $1,187,098 (a considerable part of which passed through the trustee of a family trust): Liability Judgment at [594]. The accounts of Geowash for the 2013, 2014 and 2015 financial years show commission payments totalling about $1,800,000 out of a total income of $3,500,000. 114 It appears that part of the commissions may have been paid out of the initial establishment fee paid by franchisees. The issue was not considered in any detail at the final hearing on liability. Commissions paid from establishment fess would not form part of the unfair dealing conduct. The initial establishment fee was only a small part of the overall payments made by franchisees, comprising an amount of about $35,000 for each franchisee. Precise findings as to the extent of the benefit received are hampered by the failure by Geowash to maintain proper financial records. However, the evidence was to the effect that 40% of the establishment fee was paid by way of commission: Liability Judgment at [69], [522]. On that basis, such commissions might account for about $400,000 of the commission payments (40% of $35,000 for the 30 franchisees said to have entered into franchise agreements). 115 Even allowing for the payment of commissions on the initial establishment fee, substantial benefits were received by Ms Ali and Mr Cameron (directly and through the family trust to which his commissions were paid) as a result of the contravening conduct. 116 On the evidence on the present application, Ms Ali transferred approximately $550,000 back into Geowash in an effort to prevent the liquidation of Geowash. However, that step was taken after the contravening conduct was complete. For the purposes of assessing the extent of the benefit that was derived from the contravening conduct (and might be derived by others if they engaged in similar conduct) in order to determine the level of penalty that will deter the conduct, it is the benefit that was derived from the conduct (and might be derived by others) that is material. 117 Similarly, submissions were advanced to the effect that there had been considerable legal costs incurred by Ms Ali and Mr Cameron. However, those costs are not to be brought to account in determining the level of benefit derived from the conduct: Australian Securities and Investments Commission v Kobelt [2017] FCA 387 at [41]. Loss or damage suffered by franchisees 118 The ACCC did not set out to establish the extent of the loss or damage suffered by individual franchisees. However, the nature of the consequences for franchisees of the unfair dealing conduct was explained in the Liability Judgment at [682] in the following terms: In those circumstances, I find that the conduct of Geowash in dealing with franchisees as to the charges to be made for a franchise and the application of those funds was unconscionable. It was not simply a case of a breach of the franchise agreement or a failure on the part of those acting for Geowash to properly understand their obligations. It was a considered practice that involved creating the false impression that the money paid to Geowash by franchisees would go towards the costs of the fit-out for their outlet when, in fact, Ms Ali and Mr Cameron intended to pay large amounts to themselves from those monies. It involved invoicing franchisees well before the funds were required for the fit-out of their outlet. It involved treating the monies received as Geowash funds and keeping no records as to the application of funds for the fit-out of each franchise site. As a result, if Geowash went into administration (as in fact occurred) there would be no funds set aside for the benefit of each franchisee against which a claim could be made that the funds should be returned or applied for the purpose for which they had been paid, namely the fit-out and setup of a particular outlet. In that event, when the merry-go-round stopped, some franchisees would have paid a very large amount of money and be left without an outlet and others would have an outlet on which Geowash had spent much less than had been represented. 119 Therefore, there were at least two types of loss that might have been suffered by franchisees. First, the money that was paid out as commissions should have been applied to fit-out and set-up costs and had it been so applied then that would be reflected in the quality of the premises. Alternatively, if the amounts exceeded what was required then the excess funds would have been refunded to the franchisee rather than applied to the general purposes of Geowash. Second, franchisees may have been left without completed premises if Geowash went into administration (as in fact occurred). There was some evidence to the effect that franchisees had complaints of this kind. On the other hand there was evidence from Ms Ali that substantial amounts were paid by her to ensure the completion of franchise sites. 120 The evidence shows that loss and damage of the first kind was likely suffered by individual franchisees. They did not receive the full value of what they paid because monies were improperly directed to pay commissions to Ms Ali and Mr Cameron. This conduct occurred in relation to franchisees generally. The extent of the commission amounts received by Ms Ali and Mr Cameron provided a broad indication of the extent to which loss and damage of that kind that was suffered. 121 Geowash is not in a position to provide any form of redress. Ms Ali and Mr Cameron have not provided any form of redress despite being the principal actors in the contravening conduct and its main beneficiaries. They both oppose the making of orders for redress. For reasons stated below, I propose to make orders for redress. In circumstances where the making of those orders was opposed I consider that the making of those orders is not a matter to be taken into account in mitigation of penalty. 122 It was submitted for Ms Ali and Mr Cameron that the franchisees received the benefit of an operating franchise which they elected to continue to operate. Even if that be a proper characterisation of what occurred in particular cases, that does not mean that amounts that were misapplied having regard both to the terms of the franchise agreement and what the franchisees were told could not be recovered as loss or damage suffered by the conduct. 123 There is no evidence to suggest that any franchisee entered into a franchise agreement in reliance upon the revenue and profit representations or the affiliation representation. The statutory maximums, system and course of conduct 124 For Ms Ali and Mr Cameron it was submitted that the case as to unfair conduct that was advanced by the ACCC had alleged one system of underlying conduct that contravened two distinct penalty regimes. Further, so it was submitted, there was no distinction advanced as to the nature of the conduct or the elements that involved a contravention of the two separate regimes. Therefore, it was said that the conduct in dealing with franchisees should be assessed as a single course of conduct by reference to the maximums that would apply for a single contravention. 125 The ACCC submitted that each dealing with a franchisee that resulted in a franchise agreement was a separate contravention and that in each case there was a separate breach of the unconscionable conduct provision and the obligation to act in good faith. On this approach there were many contraventions. Although the ACCC submitted that the nature of the two statutory requirements were different such that conduct might amount to a breach of one and not the other, there was no identification of the particular respects in which a distinction was to be made in this case. Further, the case advanced by ACCC throughout was that the same conduct contravened both provisions. Even so, the ACCC submitted that there should be substantial penalties in respect of the finding of unconscionable conduct and a small additional penalty to recognise that the same conduct contravened the separate statutory obligation to act in good faith. 126 There have been instances where the nature of the contravention alleged by the ACCC was of a single system of conduct. In such an instance the case alleged relies upon the formulation and implementation of the system rather than individual dealings with particular parties. The decision in Kobelt is an example. In that case the unconscionable conduct alleged against Mr Kobelt did not turn upon the circumstances of any identified customer: at [28]. The provision found to have been contravened allowed for a finding of contravening unconscionable conduct whether or not a particular individual was identified as having been disadvantaged by the conduct: at [32]. The case advanced was of that kind and did not depend upon demonstrating the circumstances of particular dealings with individual customers who obtained finance from Mr Kobelt under the book-up system that he operated. 127 I note that the decision that Mr Kobelt's conduct was unconscionable was ultimately overturned: Kobelt v Australian Securities and Investments Commission [2018] FCAFC 18, upheld in Australian Securities and Investments Commission v Kobelt [2019] HCA 18. However, the appeal decisions did not impugn the approach at first instance to assessment of penalty. 128 In Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd (in liq) (No 3) [2017] FCA 1018, Beach J approached the case on the basis that there were multiple contraventions but, having regard to the process of fixing an appropriate penalty, it was not productive to quantify the theoretical maximum penalty: at [32]-[33]. In that context, his Honour then dealt with the totality principle and the course of conduct principle. His Honour applied the reasoning in Cahill as to course of conduct. Significantly, his Honour went on to say at [38]: More generally, the 'course of conduct' principle does not have paramountcy in the process of assessing an appropriate penalty. It cannot of itself operate as a de facto limit on the penalty to be imposed for contraventions of the ACL. Its application and utility must be tailored to the circumstances. In some cases, the contravening conduct may involve many acts of contravention that affect a very large number of consumers and a large monetary value of commerce, but the conduct might be characterised as involving a single course of conduct. Contrastingly, in other cases, there may be a small number of contraventions, affecting few consumers and having small commercial significance, but the conduct might be characterised as involving several separate courses of conduct. It would be anomalous to apply the concept to the former scenario, yet be precluded from applying it to the latter scenario. The 'course of conduct' principle cannot unduly fetter the proper application of s 224. 129 In Australian Securities and Investments Commission v Westpac Banking Corporation (No 3) [2018] FCA 1701, Westpac was found to have engaged in unconscionable conduct by reason of manipulative trading behaviour in a market for bank bills. In assessing appropriate penalties, Beach J was faced with an argument to the effect that the approach that his Honour had adopted in Get Qualified meant that there were separate contravening acts each time there was a supply of financial services to a person by effecting a particular trade. His Honour did not accept that argument because the case that had been advanced by ASIC did not allege contravening acts of that kind. The contravening conduct was not alleged to be each transaction. Rather, the operative contravening conduct was said to be the approach to trading that had been adopted on each of three dates. His Honour found that the nature of the contravening conduct alleged by ASIC focussed upon conduct that informed the approach to trading on each day. Therefore, there were three contravening acts and penalties were to be assessed on that basis: at [65]. His Honour dealt separately with the course of conduct principle: at [131]-[139]. 130 These decisions highlight the distinction between whether there was a single contravening act alleged and, if not, whether there was a single course of conduct of a kind that should be brought to account in fixing appropriate penalties for multiple contraventions. The importance of this distinction was not recognised in the submissions advanced for Ms Ali and Mr Cameron which contended for a single penalty for the unfair dealing conduct on the basis that the ACCC had advanced a single course of conduct case where the same conduct was said to be both unconscionable and a breach of the good faith obligation. 131 As to the nature of the unfair conduct case advanced by the ACCC in this case, I make the following observations: (1) The case was commenced by application, concise statement and supporting affidavits and answered by a concise response. (2) The concise statement described unfair conduct by Geowash in its dealings with prospective franchisees, but did not identify particular franchisees. (3) The concise statement claimed that by engaging in the conduct as described, Geowash had engaged in conduct that was unconscionable and had failed to comply with its good faith obligation and that Ms Ali and Mr Cameron were knowingly concerned in that conduct. (4) The ACCC also delivered affidavits from seven franchisees setting out in some detail the course of their dealings with Geowash, Ms Ali and Mr Cameron. (5) Ms Ali and Mr Cameron filed a concise response which identified how many franchise agreements it had made and identified differences in the terms of the agreements made at different times. (6) The concise response included a detailed annexure in which a detailed summary of the dealings with each of seven franchisees the subject of the ACCC's affidavit evidence was set out. (7) A separate annexure to the concise response described the position in respect of each of the franchisees at the time of the administration of Geowash. (8) Ms Ali and Mr Cameron also sought further and better particulars of the matters stated in the concise statement filed by the ACCC. The requests included a number that sought details as to 'each prospective franchisee'. It included a request for particulars 'of each discussion between the franchisees and Geowash'. (9) In response to the request, the ACCC identified each of the parties with whom Geowash had entered into a franchise agreement (being 26 in number) and stated that further particulars may be provided. It also provided a similar list of each prospective franchisee. It also provided a table of the demands made by Geowash of each of the seven franchisees who provided affidavits for the payment of fees and identified the budget discussed with each of those franchisees. (10) Ms Ali and Mr Cameron filed detailed affidavits dealing with the evidence given by the seven franchisees. They also gave evidence of the manner in which they said they dealt with all franchisees, not just those who gave evidence. (11) In the outline of opening submissions for the ACCC, the elements of the conduct said to amount to unconscionable conduct was described in generic summary terms as conduct engaged in with 'prospective franchisees'. The submissions then stated that the ACCC would rely upon the evidence of the seven franchisees which would establish 'the unconscionable scheme employed by Geowash, Ms Ali and Mr Cameron'. (12) The ACCC's outline stated that the conduct also amounted to a contravention of the good faith provisions of the Franchising Code of Conduct and that the ACCC relied upon the same evidence as to that claim. (13) The outline also said that the affidavits of the individual franchisees and the correspondence attached to those affidavits showed that Ms Ali and Mr Cameron were the primary representatives and decision-makers of Geowash in dealings with franchisees and they were the recipients of commissions 'paid out of funds contributed to Geowash by franchisees'. (14) The outline of opening submissions for Ms Ali and Mr Cameron contended that Geowash opened 18 franchises, having attempted to commence 30 but 'only a subset have been brought before the Court'. A claim that a Jones v Dunkel inference should be drawn as to the other franchisees was foreshadowed. It characterised the ACCC case as alleging a 'pattern of conduct'. (15) The ACCC tendered in evidence the disclosure documents and franchise agreements for each of the franchisees. (16) In closing submissions, the ACCC invited the Court to find that the conduct of Geowash 'was a system of conduct or pattern of behaviour in respect to all Geowash's franchisees and not just the seven who were called to give evidence' (relying upon the approach of Beach J in Get Qualified). The good faith part of the claim relied upon the same conduct. (17) On the basis that the case alleged by the ACCC was one of a system or practice and on the basis that Ms Ali and Mr Cameron had given evidence of a business model that was said to apply to all dealings with franchisees, I made findings as to unconscionable conduct in respect of all franchisees: Liability Judgment at [672]-[673]. 132 In the above circumstances, it is not correct to characterise the case as to unconscionable conduct that was advanced by the ACCC as one where the contravening conduct was confined to the conception and the implementation of a scheme without regard to the particular dealings with each franchisee. The present case is to be distinguished from the nature of the cases advanced in each of Kobelt and Westpac. The case advanced by the ACCC depended to a considerable degree upon the evidence of the actual dealings with the seven franchisees. It was not a system case in the sense that the case advanced as to the nature of the contravening conduct was confined to the formulation of the manner of dealing with franchisees. Nor was this a case of broadcast conduct whereby a single act was directed at many customers such as by the publication of a statement on a website or in an advertisement. Rather, the case depended upon demonstrating a system or pattern as to the way in which Geowash dealt with each franchisee. However, it was necessary to examine the particular conduct in dealing with each of the seven franchisees and the circumstances of each franchisee in order to determine whether there was a pattern of behaviour that enabled inferences to be drawn as to the manner in which Geowash dealt with all of its franchisees. 133 The similarities between the dealings with each of the franchisees and the fact that those dealings involved the implementation of the same approach with each franchisee might make it appropriate for the conduct to be viewed as part of a course of conduct or as related conduct for the purpose of applying the totality principle (matters considered below), but it did not mean that there was a single contravention. 134 Further, as to the allegation of breach of the good faith obligation, the nature of that contravention is such that it must be established that there was a dealing with a particular franchisee in relation to a franchise agreement with that franchisee. I noted this aspect of the claim in the Liability Judgment: at [751]. In the result, I found a breach as to dealings with four franchisees only: at [764]. Therefore, the case advanced by the ACCC was that there were separate contraventions as to each franchisee for whom an agreement was proved. It depended upon exactly the same conduct as was said to amount to unconscionable conduct (an aspect considered separately below). However, the claim was articulated as a breach of the obligation of good faith that was owed separately to each franchisee who entered into an agreement with Geowash. It succeeded as to four franchisees only. 135 Therefore, I am satisfied that the case as to unfair conduct that was advanced by the ACCC and upheld in the Liability Judgment was not confined to a single contravention. There were multiple contraventions of the prohibition on unconscionable conduct. They involved implementing the same approach in dealing with different franchisees. Adopting the same approach as Beach J in Get Qualified, there were multiple contraventions alleged and established by the ACCC. The specific circumstances of a number of contraventions were established by direct evidence and the findings in the Liability Judgment extend to concluding that there were contraventions in respect of other franchisees who entered into agreements with Geowash. There were also multiple contraventions of the obligation to act in good faith. 136 It is relevant that the same conduct was said to be both unconscionable and a breach of the good faith obligation. Although there are distinct penalty regimes for the fair dealing contraventions and the good faith contraventions, any separate penalty for breach of the good faith obligation should take that aspect into account. In effect, the submissions for the ACCC accepted that to be the case whilst emphasising that the conduct was a separate contravention. 137 As to whether the conduct should be viewed as a single course of conduct, in my view that would not be appropriate. The dealings were over a considerable period. They involved a separate and extended engagement with each prospective franchisee. Although the overall approach to the dealings was the same, the meetings and much of the correspondence were specific to the particular franchisee. The fees charged to each franchisee were not the same. To treat the conduct as a single course of conduct would not reflect the sustained nature of the behaviour and the need for separate dealings with each franchisee. 138 Although the same overall approach was adopted for each franchisee, it was not a case of broadcast conduct whereby a single act was directed at many customers such as by the publication of a statement on a website or in an advertisement. Each dealing was with a particular franchisee and involved separate and distinct conduct repeating the same pattern of behaviour in dealing with different franchisees. It was not a general scheme to engage with all customers by a single program. It involved reaching a separate agreement with each franchisee. It was continued for a number of years. These aspects of the contraventions make the system of conduct an inappropriate tool for the present case. What is more significant is the totality principle and an understanding of the extent of the consequences for franchisees. Whether it be described as a system or as a pattern of behaviour, the contraventions involved essentially the same behaviour formulated as a general approach to dealing with franchisees and then implemented for each of them. It would be inappropriate to assess the contraventions on the basis that they involved completely distinct types of contravening behaviour. 139 As to the website conduct, the relevant material was on the website for about a year. The claim of contravention was not made on the basis of a download by any particular customer. Nor was any attempt made to quantify the number of downloads that may have occurred. Rather, the case alleged depended upon publication to a class of persons who may be interested in a Geowash franchise. The evidence showed that the website was a source of inquiries from prospective franchisees who were then contacted directly. It was not argued at the time of the Liability Judgment that there had been no downloads and therefore no contravention. The evidence as to the way in which inquiries were received by Geowash would have stood in the way of such a submission. The evidence showed that interested parties considered and responded to the website information and were then contacted by Ms Ali or Mr Cameron. 140 It was alleged by the ACCC that there was a separate contravention each time there was a download of the information from the website. Reliance was placed upon the decision in Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698 at [12]-[14] where Beach J found: In my view, each communication of the 'FREE BETS' offer via the Bet365 website to each person that viewed the website involved a separate contravening act by Hillside Australia and Hillside UK for the purposes of s 224(1) and (3). A contravention of s 29 occurs each time a false representation is made. A representation is made when there is a communication of some form. The act of placing information on a website that is yet to be accessed by downloading does not involve the making of a representation. An uncommunicated statement is relevantly no representation. In reality, the representation is made when the website is viewed by a person through downloading the relevant page. If one considers the technology, prior to the download all that one has is information in digital form on the server used by a respondent. For a representation to occur, a customer using his web browser software must issue a request to the relevant server nominating the location of the web page which is identified by a uniform resource locator. When the customer receives the information requested, then and only then could it be said that a representation has occurred. Until that time there is nothing communicated and nothing represented. The communication modes of television or radio are not appropriate technical analogues. In a different context, the application of the ACL to website representations was recently considered in Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196 in analysing the question of territorial reach. Statements were made on a website based in Washington State, USA but accessed in Australia. Edelman J observed at [181]: Considered by themselves, they were general representations to the world at large. They are not representations to any person or to any Australian consumer. Until the representations were accessed, the representations were meaningless and could not be the subject of any alleged contravening conduct. But, by the time a consumer had purchased a game or downloaded Steam Client the consumer had a relationship with Valve and representations were made in Australia. 141 However, the misrepresentation case alleged depended upon a course of conduct by which the relevant information was placed on the website and then not removed for a period of about a year. The acts by which the revenue and profit representations were made occurred together. The acts by which the affiliation representation was made were distinct. In circumstances where there was no attempt by the ACCC to identify the extent to which the information was downloaded from the website and there were separate direct dealings with prospective franchisees, it is appropriate to treat the contraventions as being in two groups and for each group to be treated as a single course of conduct for the purposes of assessing penalty. Relativities in penalties 142 In addition to the matters to which I have referred, it was submitted that the individual penalties for Ms Ali and Mr Cameron should take account of the relativity evident in the statutory provisions that establish a much higher penalty for bodies corporate than for natural persons in the case of all penalties save for the breach of the good faith obligation in the Franchising Code of Conduct. If proceedings are brought against a corporation and an individual for contraventions arising from particular conduct then to the extent that there is equal culpability and other factors indicate a similar approach to the level of penalty, there is likely to be merit in that submission. 143 However, where there are reasons why an individual bears more culpability and more responsibility for the conduct such that a higher relative penalty is required to deter the individual than may the case for the corporation, then the penalties imposed may not reflect the statutory relativity. Further, where the individual is the author of the conduct, controlling mind of the corporation and entitled to the benefit of the shareholding in the company, those factors may mean that a penalty closer the maximum is appropriate for the individual than the corporation. This approach is reflected in the decision in Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79 at [62]-[63], quoted with apparent approval by Bromwich J in Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301 at [156]. 144 Recent decisions as to appropriate penalties reveal a range of relativities that diverge considerably from those to be found as between the statutory maximums for bodies corporate and natural persons where the statutory maximums were $1,100,000 and $220,000 respectively: see, for example, Director of Consumer Affairs Victoria v Wens Bros Trading Pty Ltd [2019] FCA 39 (Mortimer J) where penalties of $225,000 (corporation) and $190,000 (individual) were imposed; Commissioner for Fair Trading v Digital Marketing and Solutions Pty Ltd t/as Android Enjoyed and Camerasky [2019] NSWSC 370 (Fullerton J) where penalties of $2,250,000 (corporation) and $900,000 (individual) were imposed; Australian Competition and Consumer Commission v We Buy Houses Pty Ltd (No 2) [2018] FCA 1748 (Gleeson J) where penalties of $12,000,000 (corporation) and $6,000,000 (individual) were imposed; and Australian Competition and Consumer Commission v Burden [2017] FCA 399 (Gilmour J) where penalties of $40,000 (corporation) and $15,000 (individual) were imposed. 145 Here, Ms Ali is the embodiment of the corporation as its sole director and was the main instigator of the conduct, the main actor in the conduct and a major beneficiary of the conduct. She caused Geowash to be established for the purpose of the venture. She was the instigator behind the establishment of the business and the approach to be adopted in dealing with franchisees. For those reasons, it is appropriate for her penalties to be assessed at a level that is higher (relative to that applicable maximum for individuals) than for Geowash (relative to the applicable maximum for corporations). 146 In the case of Mr Cameron, he was a substantial beneficiary of the conduct. The commissions paid to him (or to the family trust) represented a substantial part of the monies received by Geowash. 147 This is not a case where Geowash itself benefitted from the conduct. Rather, the unconscionable dealings operated to the personal benefit of Ms Ali and Mr Cameron. In effect, Geowash was used as a vehicle by which Ms Ali and Mr Cameron appropriated monies that ought to have been expended by Geowash on fit-out and set-up of franchises (or returned to franchisees). This is a significant reason why it is appropriate for their penalties to be assessed at a higher level than those for Geowash in terms of their relativity to the applicable maximum. 148 I note that by reason that Geowash is now in insolvent administration, this is not a case where issues arise as to whether the penalties to be imposed upon both Ms Ali and Geowash should be adjusted to reflect the fact that she is the sole person interested in Geowash and therefore the person who will bear the burden of the imposition of those penalties. In such cases, issues of some complexity may arise. The legislation is of a kind where corporations may be primarily liable on the basis of the conduct of an individual which is the act of the corporation. Further, there may be a separate contravention on the part of the individual because the same conduct can give rise to accessorial liability: Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121. As a result, where the same acts by the same person give rise to the liability of each of the company and the individual and the individual will ultimately bear the burden of both penalties, there may be issues as to whether that is a factor to be brought into account in assessing penalty and, if so, to what extent and in respect of which penalties. Compliance 149 It was submitted that instead of remedies penalising Ms Ali and Mr Cameron there should be orders requiring them to undertake compliance training. There was no specific content advanced as to the form that any such training might take or why there may be confidence that it would be sufficient to ensure that there was no such conduct in the future. I note that Ms Ali and Mr Cameron could have undertaken such training before now but there is no evidence to suggest that they have done so. Compliance training would not fulfil the need for general deterrence for conduct of the kind in this case. I do not accept that this is a case where orders for compliance might be considered as an appropriate alternative. Penalties for Geowash 150 In the case of Geowash, an issue arises as to whether it is appropriate to impose penalties given that they would not be provable in any liquidation. Despite that fact, penalties have been imposed against companies in liquidation where they were justified on the basis of general deterrence. The relevant principles were recently summarised by Gleeson J in Australian Competition and Consumer Commission v Cornerstone Investment Aust Pty Ltd (in liq) (No 5) [2019] FCA 1544 at [31]-[36]. As the conduct has been scrutinised by the Court and is the subject of published reasons I am satisfied that it is appropriate for the purposes of general deterrence to fix appropriate pecuniary penalties for Geowash. 151 As to quantum, taking account of the factors I have identified, I assess the following penalties in respect of Geowash: (1) for unconscionable conduct, $2,000,000; (2) for the additional contraventions in the form of breaches of the obligation of good faith under the Franchising Code of Conduct by engaging in the same conduct, $50,000; (3) for the profit and revenue representation contraventions, $300,000; and (4) for the affiliation representation contraventions, $150,000. Penalties for Ms Ali 152 Taking account of the factors I have identified, and bearing in mind the disqualification order that I propose to make, I assess the following penalties in respect of Ms Ali: (1) for unconscionable conduct, $800,000; (2) for the additional contraventions in the form of breaches of the obligation of good faith under the Franchising Code of Conduct by engaging in the same conduct, $20,000; (3) for the profit and revenue representation contraventions, $150,000; and (4) for the affiliation representation contraventions, $75,000. Penalties for Mr Cameron 153 Taking account of the factors I have identified, and bearing in mind the disqualification order that I propose to make, I assess the following penalties in respect of Mr Cameron: (1) for unconscionable conduct, $640,000; and (2) for the additional contraventions in the form of breaches of the obligation of good faith under the Franchising Code of Conduct by engaging in the same conduct, $16,000. Injunctions 154 As Geowash is in administration there would appear to be no utility to the grant of any injunction against Geowash in respect of the contravening conduct. The ACCC did not press for such relief. 155 For Ms Ali and Mr Cameron it was submitted that any injunctions should reflect the terms of declaratory relief. The ACCC accepted that position. Injunctive relief may be granted whether or not there is a likelihood of the conduct being repeated. The grant of injunctive relief minimises the risk of future contravention by introducing the possibility of the sanctions applicable to contempt of court. The conduct in this case continued for many years and was sought to be defended and justified by Ms Ali and Mr Cameron. I am satisfied that there should be injunctions in the terms sought. Redress orders 156 As I have noted, since commencement, the relief sought by the ACCC has included an order that the respondents pay non-party consumer redress pursuant to s 239 of the ACL. The ACCC now seeks the redress order on the basis of the findings of the unfair dealing contraventions. It seeks to support the making of a redress order on the basis of findings in the Liability Judgment that monies paid to Geowash that should have been applied to fit-out and set-up of franchise premises were paid to Ms Ali and Mr Cameron as commissions. 157 At the final hearing on liability, expert evidence was given by Ms Yan, a forensic accountant. It was based upon the banking records for Geowash, Ms Ali, Mr Cameron and others. The bank records of Geowash included various transfers out of its bank accounts that were described as commissions. As to these matters, I made the following findings in the Liability Judgment (at [588]-[594]): The analysis by Ms Yan was undertaken for the period from 1 January 2012 until the last date of the bank statements. Some bank accounts only operated for part of the period. Others continued until the administration of Geowash. There was no suggestion that there were other bank accounts that should have been included. In effect the analysis was from 2012 until 2016. Amounts paid by Geowash and its related entities HTN and Geowash Supplies (other than inter and intra entity transactions) were divided into six categories: (a) for the benefit of franchisees ($2,380,271); (b) operating expenses of Geowash and its related entities ($2,845,226); (c) potential operating expenses ($733,292); (d) personal expenses ($77,296); (e) commissions ($2,646,254); and (f) unknown ($1,052,976). The conclusions that might be drawn from the analysis based upon descriptions in the bank records are limited by those descriptions. However, in the case of payments made to Ms Ali and Mr Cameron and their associated parties they are based on a contemporaneous description allocated when those payments were made. The description of many payments as commissions is significant. I have found separately that the commission payments made by Geowash were properly sales commissions and were not determined on the basis of work done for franchisees. Further they were payments of a kind that Geowash was not entitled under the terms of its franchise agreements to treat as expenses that could be met out of the staged payments received from franchisees. Yet that is what occurred. Although there was evidence that Ms Ali undertook some other business activities and received some payments in respect of those activities, the evidence did not show that substantial commissions were to be paid as a result of those other activities. I find that a reasonable degree of confidence can be placed in the use of the description commissions as indicating payments that were mostly made for effecting sales of franchises. Therefore, the analysis by Ms Yan shows that a large amount of the payments made by Geowash were for commissions. Likewise, amounts that could be identified from their descriptions as personal expenses are likely to be reasonably accurate (bearing in mind the approach of including in a separate category amounts where there was uncertainty). They show that a considerable amount was paid to meet expenses that were not business expenses. The cross-examination of Ms Ali identified quite a number of these items. Despite Ms Ali's attempts to characterise some of those items as business expenses, I do not accept that evidence as credible. Otherwise, having regard to its limitations I do not rely upon Ms Yan's analysis as a basis for drawing a conclusion as to the extent to which amounts received by franchisees were applied to fit-out and set-up franchises. As to that aspect, I have found that there was no means by which Geowash could ensure that the amounts invoiced to franchisees by way of staged payments corresponded to the actual costs incurred even though the staged payments (described as instalments of a 'purchase price') were justified to franchisees on the basis that they represented charges for actual costs. For the purposes of these proceedings it is not necessary to undertake a precise calculation of the extent to which there was a divergence. On the basis of all the evidence, I find that there was no correspondence between the staged payments received from franchisees and the actual costs of fit-out and set-up of the franchise outlets as expended by Geowash. Instead, Ms Ali and Mr Cameron established an amount that would be invoiced to franchisees and then paid themselves commissions based on those amounts and did not otherwise track or account for the expenditure of those funds on the particular fit-out or set-up of individual franchises. I accept the analysis of the flow of funds undertaken by Ms Yan. It showed that of the funds received into the various bank accounts over the period 2012 to 2016, Ms Ali and Mr Cameron and his wife were the ultimate beneficiaries of a considerable part of those funds. Ms Ali received and retained $1,766,305. Mr Cameron received and retained $199,631. Mrs Cameron received and retained $1,187,098. Of the funds received by Mrs Cameron a considerable part passed through Aleja Pty Ltd the trustee of a trust that received commission income under the terms of Mr Cameron's engagement by Geowash. 158 As I have noted, based on these findings, the ACCC seeks orders that would require Ms Ali to pay the amount of $1,766,305 and Mr Cameron to pay the amount of $1,386,729 into a redress fund for distribution pro rata to Geowash franchisees who paid franchise fees for the establishment of franchise premises. However, as the findings indicate, the amounts identified in the Liability Judgment do not correspond precisely to the commission amounts paid out of fees received for fit-out and set-up. Franchisees also had to pay an establishment fee of or about $35,000. There were other fees such as leasing fees that could be charged. There were also ongoing fees to be paid based upon sales earned by franchisees. However, the contraventions concerned the phase where Geowash was establishing its network of franchisees. The evidence showed that during the period of the contraventions most of the income received by Geowash was from fees charged for the fit-out and set-up of franchise premises. 159 It was no part of the case put by the ACCC that part or all of the establishment fee or other fees payable under the franchise agreement could not be paid by Geowash by way of commission. The main fees received in addition to fees for fit-out and set-up were the establishment fees. As to fees other than establishment fees, there was no suggestion that they attracted commission payments. The banking records relied upon by Ms Yan showed that the relevant distributions made from the Geowash bank accounts were described as 'commissions'. As I have noted, the evidence indicates that commissions on establishment fees might account for about $400,000 of commission payments. 160 Therefore, adopting a conservative approach, on the findings made in the Liability Judgment, the extent of the commissions received by Ms Ali and Mr Cameron from the contravening conduct was more than $2,000,000. 161 There is also evidence that Ms Ali contributed about $550,000 from her own funds into Geowash in order to complete the fit-out and set-up for a number of franchise outlets. This amount was not brought to account by Ms Yan. 162 Although some franchise agreements included a provision allowing Geowash to charge management fees for managing the process of design and fit-out of the franchise (Liability Judgment at [87]-[88]), there was no evidence of any such management fees being charged. There was evidence to the effect that by bringing management activities in-house, the costs associated with establishing a Geowash franchise were reduced compared to other similar franchise businesses. 163 There is no evidence by which to identify the particular extent to which any particular franchisee might have received less by way of expenditure on fit-out and set-up than the amount contributed. The statutory power to make redress orders 164 Section 239 of the ACL provides that if a person has engaged in contravening conduct that has caused a class of persons (who include non-party consumers) to suffer loss or damage then the Court may, on the application of the ACCC, 'make such order or orders (other than an award of damages) as the court thinks appropriate' against a person who engaged in, or was involved in the contravening conduct. 165 Section 239(3) then provides that the order must be an order that the Court considers will: (a) redress, in whole or in part, the loss or damage suffered by the non‑party consumers in relation to the contravening conduct or declared term; or (b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the non‑party consumers in relation to the contravening conduct or declared term. 166 Section 240 provides: Determining whether to make a redress order etc. for non‑party consumers (1) In determining whether to make an order under section 239(1) against a person referred to in section 239(2)(a), the court may have regard to the conduct of the person, and of the non‑party consumers in relation to the contravening conduct, since the contravention occurred. (2) In determining whether to make an order under section 239(1) against a person referred to in section 239(2)(b), the court may have regard to the conduct of the person, and of the non‑party consumers in relation to the declared term, since the declaration was made. (3) In determining whether to make an order under section 239(1), the court need not make a finding about either of the following matters: (a) which persons are non‑party consumers in relation to the contravening conduct or declared term; (b) the nature of the loss or damage suffered, or likely to be suffered, by such persons. 167 The kinds of orders that may be made by way of redress include 'an order directing the respondent to refund money or return property to [the person likely to have suffered loss or damage]': s 243(d). However, the orders that may be made are not confined to the orders specified in s 243. 168 The current provisions in the ACL concerning redress orders are, in substance, the successors to the former s 87AAA of the Trade Practices Act 1974 (Cth): Director of Consumer Affairs Victoria v Domain Register Pty Ltd (No 2) [2018] FCA 2008 at [13] (Murphy J) and Australian Competition and Consumer Commission v AGL South Australia Pty Ltd [2015] FCA 399 at [80] (White J). 169 Section 87AAA was introduced by the Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 (Cth). 170 The Explanatory Memorandum for the Trade Practices Amendment (Australian Consumer Law) Bill 2009 is largely descriptive. Leaving aside the detailed explanation, the Explanatory Memorandum reads: Context of amendments 7.2 The Full Court of the Federal Court of Australia in Medibank Private Ltd v Cassidy [2002] FCAFC 290 held that the existing section 87 of the TP Act does not allow orders to be made for those who are not parties to the proceedings. The High Court refused the ACCC special leave to appeal the Full Court's decision. 7.3 The TP Act and the ASIC Act will include provisions allowing the Court to make orders for the provision of civil redress to non-parties to proceedings, within the limits provided by the Australian Constitution. Summary of new law 7.4 The ACCC or ASIC can seek orders that would redress, in whole or in part, loss or damage to non-party consumers arising out of a contravention of certain consumer protection provisions of the TP Act (including the Australian Consumer Law (ACL)) and the ASIC Act or who are disadvantaged by a term in a consumer contract which has been declared to be an unfair term or a prohibited term (see Chapter 2). 7.5 The non-party consumer is only bound by such an order if they choose to accept the order. If a non-party consumer does accept the redress they can not make further claims or take further action in relation to that loss or damage. 7.6 The types of redress available include: declaring a contract or arrangement void in whole or in part; varying a contract or arrangement; an order refusing to enforce provisions of a contract or arrangement; an order to refund monies or return property; an order to repair goods or supply services at the respondent's expense; or an order varying or terminating an instrument creating or transferring an interest in land. 171 During the Second Reading Speech in the House of Representatives, the Minister stated: Redress for non-parties will allow the ACCC and ASIC to act more effectively where, for instance, thousands of consumers suffer small losses on which each of them might not take action individually because of cost and inconvenience. Businesses should not profit from consumer detriment, just because the amount is small or the harm is spread widely. This is not a general power to award damages, but a power to order redress where that loss or damage is clearly identifiable and there is no need to decide the merits of each case. It could be used to order redress such as an apology, the exchange of goods or a refund. 172 In the second reading in the Senate, there were some additional comments: The redress for non-parties provisions of the Bill will allow the ACCC and ASIC to act more effectively where, for instance, thousands of consumers suffer small losses on which each of them might not take action individually because of cost and inconvenience. Businesses should not profit from consumer detriment, just because the amount is small or the harm is spread widely. These provisions address a concern about the limitations of the current scope of the powers of the ACCC, which was brought to a head in the 2002 decision of the Full Federal Court in Medibank Private and Cassidy, where the Commission's powers were found not to be sufficient to entitle it to seek relief on behalf of persons who were not parties to the enforcement action. This reform will remedy that deficiency. This reform will allow a court to order the payment of refunds and similar forms of redress without the need for all consumers affected to be named as parties to the regulator's court proceedings. This is not a general power to award damages, but a power to order redress where that loss or damage is clearly identifiable and there is no need to adjudicate the merits of each particular case. It could be used to order redress of a standard form, such as the making of an apology, the exchange of goods or the payment of a refund. Redress for non-parties will be able to be sought where a person engages in conduct that contravenes the unconscionable conduct or consumer protection provisions in the Trade Practices Act or the ASIC Act, or where a court has made a declaration that a term of a consumer contract is an unfair term or a prohibited term. 173 In Domain Register, Murphy J rejected an argument made by Domain by reference to the above Second Reading Speech to the effect that redress orders should not be made unless loss or damage is clearly identifiable and there is no need to decide the merits of each case. It was submitted in support of the argument that otherwise a party would be denied the opportunity to test or challenge the claims of particular persons asserting that they had suffered loss or damage: at [23]. His Honour rejected that view of the Second Reading Speech: at [29], [36]-[38]. Further, his Honour found that there could not be recourse to the Second Reading Speech in the absence of ambiguity and that s 239 is a remedial provision expressed in terms that confer a wide power with respect to the kind of orders that could be made: at [30]. Specifically, Murphy J held at [31]: I do not accept Domain's contention that a non-party consumer redress order should not be made because some of the 21,089 persons who acquired a '.com' domain name through Domain's conduct may have intended to do so, or because the proposed orders will allow non-party consumers to claim and receive a refund without proving that they were actually misled or deceived or that they actually suffered loss or damage. As s 240(3) expressly indicates, there is no such limitation on the power in s 239(1). Section 239 is intended to enable consumers to obtain redress for loss or damage suffered or likely to be suffered through contravening conduct, without having to take individual action to establish the loss or damage. 174 The approach in Domain Register was followed by Banks-Smith J in Australian Competition and Consumer Commission v Ashley & Martin Pty Ltd (No 2) [2019] FCA 1739 at [24]. 175 In AGL South Australia, White J made redress orders by consent. They provided for refunds of amounts paid by consumers. Reference was made to the Second Reading Speech: at [80]-[81]. The decision did not deal with the issue of the degree of certainty required as to loss having been suffered to the full extent of the refund by each of the persons who would be entitled to redress under the orders. 176 In Australian Competition and Consumer Commission v Clinica Internationale Pty Ltd (No 2) [2016] FCA 62, Mortimer J made redress orders. In that case, Clinica provided what were described as recruitment consulting services to people seeking to obtain permanent residence in Australia. Remedial orders were made on the basis of a statement of agreed facts. By that process, the respondents did not dispute that the cleaning course and cleaning work offered by Clinica could never have entitled people to apply for the relevant visa and no people who completed the cleaning course were placed in cleaning jobs. As to s 239, her Honour said at [255] (after referring to the Second Reading Speech): Although the text of s 239 indicates non-party redress orders are not intended to operate as a substitute for damages, it is clear they are intended to provide a limited form of redress where loss or damage is clearly identifiable, such as in the case of a refund for goods purchased or services paid for, in circumstances of contravening conduct. As such, I am satisfied that the orders in this proceeding requiring refunds under s 239 are properly characterised as 'compensation' as that term is used in s 227. Orders which have redress of past loss or damage as their purpose are compensatory in nature. 177 However, those observations were expressed in circumstances where there was no issue raised as to the extent of the power where the precise extent of loss or damage may not be clearly identifiable. The redress orders were overturned on appeal as to one aspect concerned with whether they could require particular trust funds to be applied to make the redress: Swishette Pty Ltd v Australian Competition and Consumer Commission [2017] FCAFC 45; (2017) 249 FCR 483. 178 I propose to apply the approach adopted in Domain Register and Ashley & Martin. Cases concerning redress orders 179 Redress orders were made under s 87AAA in Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; (2011) 195 FCR 1 at [121]-[134] (Gordon J). Those orders were made on the basis of the identification of a class of non-party consumers. They enabled consumers to opt-in to the operation of orders that set aside their contract for publication of details in a directory and obtain a refund. The orders were made on the basis of general findings as to the manner in which the respondent dealt with its customers. Gordon J described the conduct as a 'directory scam' by using descriptions that created the impression that the directory was part of the well-known Yellow Pages directory long published by other parties. Her Honour found that it was possible that not all customers would want their contracts voided and money refunded: at [126]. Even so, the orders conferred the right to set aside the contract and obtain a refund on all customers. Also, the likelihood that the orders may not be complied with was not a reason for declining to make the orders: at [130]. Therefore, in the present case, the fact that Ms Ali and Mr Cameron may not have the financial resources to comply with an appropriate redress order is not a reason why that order should not be made. 180 In Australian Competition and Consumer Commission v ACN 117 372 915 Pty Ltd (in liq) (formerly Advanced Medical Institute Pty Ltd) [2015] FCA 368, there was a finding of unconscionable conduct and redress orders were made. Orders were made for refunds of monies paid by an identified list of patients for a particular treatment. The orders were made on the basis of findings that, but for the unconscionable conduct, each of the patients would not have entered into agreements or should have received a refund. North J dealt with an argument that there should not be a redress order at [1012]: The respondents argued that no order should be made under s 239(1) because no loss or damage had been particularised. The circumstances of each of the NRM patients are set out in their witness statements and, in some cases, further evidence emerged in cross-examination. Those circumstances demonstrated that the patients suffered loss or damage by entering into the contracts with NRM. The damage suffered requires that the agreements be undone by the Court. By the Court requiring the refund of monies paid, the patients are put into the financial position as if they had not had been subjected to the contravening conduct. The damage suffered was entering into the contract with NRM and no further particularisation is necessary. It may be that only a more limited order would be justified under s 239(1)(a)(ii), because the loss and damage caused by the unfair term may be different from the loss and damage resulting from the unconscionable conduct more generally. The loss and damage suffered as a result of the unfair term was the inability to cancel the contract without incurring a financial penalty. An order which allows the patient to cancel the contract without incurring a penalty provides the redress referred to in s 239(3) of the ACL. In this case, that form of order is not required because the form of order sought by the ACCC, which should be granted, addresses the loss and damage resulting from the unconscionable conduct more broadly. 181 In Domain Register the contravening conduct involved sending unsolicited notices to businesses with a .com.au domain name offering to supply registration of a .com domain name on payment of a specified price. The conduct was found to be misleading and deceptive by reason of the potential for confusion on the part of customers as to whether they were renewing their .com.au registration or obtaining an additional .com registration. Redress orders were made that enabled persons to be entitled to a refund where they completed a declaration that they were misled or deceived by the notice. There was in addition a requirement that the person who sought the refund had not renewed the .com registration once aware of the true position. In making those orders, Murphy J said at [33]-[35]: Domain's contention that a non-party consumer must establish that they were actually misled and actually suffered loss or damage is inconsistent with: (a) s 239(1)(a) which only requires the contravening conduct to be likely to cause a class of persons to suffer loss or damage; and (b) s 240(3) which expressly provides that the court need not make a finding as to which persons are non-party consumers in relation to the contravening conduct or the nature of the loss or damage suffered or likely to be suffered. The fact that Domain provided refunds to the five consumers considered in the liability judgment does not mean it should be allowed to decide whether or not to accept an application for a refund. There is evidence that Domain initially refused to pay a refund in some cases or initially made only a partial refund and I do not accept that Domain provided the refunds as readily as it now contends. I am not prepared to rely upon Domain to decide which non-party consumer claims are accepted and which are not. Contrary to Domain's submissions there are several decisions of the Court, albeit in the context of orders jointly proposed by the parties, which indicate it may be appropriate to order refunds for non-party consumers under s 239(1) without requiring persons to prove that they had actually been misled and actually suffered loss or damage. In Australian Competition and Consumer Commission v Reebok Australia Pty Ltd [2015] FCA 83 at [168]-[170] McKerracher J made s 239(1) orders in a case involving misrepresentations about the benefits of particular shoes in improving leg and buttock toning and strength. The orders allowed non-party consumers to claim a refund of $35 on proof of purchase of such shoes, without any requirement to prove that they had been misled or deceived. In Australian Competition and Consumer Commission v Lifestyle Photographers Pty Ltd [2016] FCA 1538 Markovic J made s 239(1) orders in a case involving misleading conduct in the sale of photograph collections. The order allowed non-party consumers to claim a refund of the amount they paid for the photographs without proving they had been misled or deceived and, where they had already received their photograph collection, even without returning it. 182 In Clinica, Mortimer J described the nature and extent of the redress power at [293] in the following terms: Section 239 is a remedial power. It is designed to allow the Court to undo damage to third parties caused by contravening conduct. The manner in which damage caused might need to be undone will inevitably need to be tailored to the circumstances of the contravening conduct, to the loss or damage suffered, and to the circumstances of the contravener and those involved in the contravention. There are no boundaries drawn in express terms in the way the power is conferred. The terms of s 243 provide examples of the way power might be exercised but should not be construed as confining s 239: Acts Interpretation Act 1901 (Cth), s 15AD. Rather, the use of the standard of appropriateness is a clear indicator that the legislature intends the Court to be able to fashion orders to suit the circumstances of a given case. It is precisely the kind of power where what is important is to look at the 'reality' of the financial circumstances of the contraveners, and those involved in the contravention. 183 The above passage was quoted in Swishette at [11], but the point raised in the appeal did not require the Full Court to consider whether the above general description of the nature and extent of the power was appropriate. The passage was cited by Moshinsky J as a discussion of the applicable principles in Australian Competition and Consumer Commission v Harrison (No 2) [2017] FCA 182. In Harrison, Moshinsky J granted redress orders against corporate respondents but declined to include the controller of those companies in the orders, on the basis that he did not receive the relevant payments and given 'his limited assets, and the other orders to be made with respect to Mr Harrison, it is unlikely that he would be in a financial position to pay the relevant amounts. Therefore, it is unlikely that a redress order requiring Mr Harrison to pay the relevant amounts would achieve the object of providing redress to the affected customers': at [39]. The circumstances of that case may be distinguished, particularly by reason that Ms Ali and Mr Cameron received the commissions. 184 The passage from the judgment of Mortimer J in Clinica was also followed by Murphy J in Domain Register at [30] and noted without criticism by Banks-Smith J in Ashley & Martin at [25]. The nature and extent of the power to make redress orders under s 239 185 Section 240(3) provides, in effect, that an order under s 239 by way of redress may be made without identifying the persons who are the non-party consumers, or the nature of the loss. It is enough that the Court is satisfied that there has been loss or damage caused to a class of persons that includes non-party consumers. By inference, redress orders may be made on the basis that the nature of the conduct means that it is appropriate for redress to be ordered that will flow to the class of persons affected. There is no requirement that the Court be satisfied that there is a precise correspondence between the redress that might be received by a particular member of the class and the actual loss suffered by that member. 186 Rather, the Court must be satisfied as to the appropriateness of the order given the nature of the conduct and the loss or damage for a class. In many instances, the present case is an example, the nature of the conduct itself will make it difficult to determine the precise loss or damage suffered by each member of the class. The failure to keep records, the extent of inquiries that may need to be made, the fact that the conduct has enabled the contravening party to benefit to a considerable degree by imposing relatively small financial losses onto a large number of people or the fact that there may be an undue burden placed upon parties if they were required to make individual claims are all reasons why it may be appropriate for a redress order to be made in a particular form even though it cannot be said with certainty or particularity that it will result in redress that is precisely calibrated to the actual loss of each member of the class. It may be that there is a degree of confidence that redress to a particular level is appropriate because there can be a degree of confidence that there has been loss or damage by members of the class of at least that extent. 187 Of course, it will be necessary to consider whether the nature and extent of the loss has been established with sufficient certainty to make the orders appropriate in all the circumstances. Further, the manner in which the orders will operate in respect of individual members of the class must be considered to be correspondent in a general way with the loss suffered by those individuals. As provided for in s 238(2), the Court must consider that the redress orders will compensate the non-party consumer in whole or in part for loss or damage or prevent or reduce loss or damage. The orders must be made in circumstances where, as framed, they will effect compensation rather than some other form of outcome such as a penalty or punitive response. 188 If, after evaluating these matters, the Court is not satisfied that redress orders are appropriate given the nature of the conduct and its consequences then orders are not justified by the statutory provisions. 189 Section 241 provides that redress only affects the rights of a non-party consumer if they accept the redress. Specifically, s 241(3) provides that the party who opts-in by receiving the redress may not bring a claim 'in relation to that loss or damage' (emphasis added). The reference to that loss or damage is that referred to in s 241(1), namely that which is redressed. 190 Therefore, it appears that the orders may specify the nature and extent to which they are intended to effect redress. They may be made on the basis that they are to redress any and all loss or damage. If so, accepting the redress will mean that no claim can be brought as to that loss and damage (namely any and all). However, they may be made on the basis that the redress is to be partial. If so, accepting the redress will mean that no claim can be brought as to that loss and damage (namely to the extent of the partial redress). Therefore, a partial redress scheme will only prevent a claim to the extent that the scheme effects that redress. 191 These aspects have significance. If it were the case that the redress scheme only operated in full and final settlement for those accepting the redress then you would expect language to that effect to be deployed. Further, the provision for partial redress is consistent with the fact that the Court is not required to make a determination as to the precise extent of the loss or damage suffered and then only redress that amount. 192 As to partial redress, the issue is whether the Court considers that it will be compensatory as to its effect and it is appropriate. What is proposed by the ACCC is a form of partial redress, namely the establishment of a fund to which amounts are contributed by each of Ms Ali and Mr Cameron against which claims can be made based upon the extent of fit-out and set-up costs paid. Other claims or claims to further amounts may be pursued by franchisees against Geowash. 193 The orders sought should not be made unless they are considered to be appropriate, in the sense of being suitable or fitting the purpose of effecting redress. Any orders must be reasonable and adapted to the purpose of effecting redress, which involves striking a balance between relevant interests to provide an outcome which is fit and proper: Vella v Commissioner of Police (NSW) [2019] HCA 38 at [50]. This involves a consideration of the interests of all parties: Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353 at 368 (Mason P). The nature of the proposed redress order 194 The form of redress order sought by the ACCC would not require Ms Ali and Mr Cameron to make a refund to Geowash franchisees. Rather, it would require them to pay amounts into a fund to be administered by an independent accountant who would make a pro rata distribution of those amounts to franchisees who make a claim against the fund. The distribution would be based upon evidence provided by franchisees as to the extent of monies paid to Geowash. It would be justified by the findings as to the extent of commissions received for the benefit of Ms Ali and Mr Cameron. Submissions against the making of redress orders 195 Ms Ali and Mr Cameron oppose the making of redress orders. It is submitted that it has not been shown that the amounts which the ACCC seeks to be contributed to the fund were amounts received as the direct result of the unconscionable conduct. It is said that the amounts do not allow for other fees received by Geowash that could have been applied to pay commissions to Ms Ali and Mr Cameron. However, for reasons I have given, the only evidence of such fees is in respect of the establishment fees and an adjustment can be made to deal with that aspect. 196 It is also said that the loss and damage suffered by particular franchisees cannot be quantified and the amount of funds received by Geowash from franchisees that were actually applied to the fit-out and set-up of franchises cannot be determined. Therefore, it could not be said that the orders sought would provide for any meaningful measure of compensation for actual loss and damage. I do not accept these submissions. On the findings made, it is possible to identify an amount of money which represents loss or damage to the franchisees. It is not necessary for the redress orders to be fully compensatory. 197 It was submitted that the proposed orders will require the independent accountant to embark upon a fact-finding mission to determine the amounts contributed by each franchisee. I do not accept that submission. Orders of the kind proposed, if made, would establish an administrative process that may be supervised by the Court by which claims may be made against the fund. The criteria to be applied would be specified in the order. The nature of the calculations to be made would be made plain by the terms of the order. The accountant would not be appointed to undertake a determination of the extent of the loss or damage. The orders would be made on the basis of an evaluation made by the Court as to the extent of funds received as commissions that should be refunded on the basis that they were only secured by engaging in the contravening unconscionable conduct. The court is not required to make findings as to the precise level of compensation to which a franchisee would be entitled. Rather, for reasons already given, the Court need only be satisfied that it is appropriate for the orders to be made (having regard to the nature of the conduct and its consequences for the identified class) and that it will redress or reduce the loss or damage suffered by the members of that class. Practicality may require the orders to be made on the basis of a general assessment as to what is likely to most effectively achieve that outcome without incurring unreasonable costs of assessing precisely the loss or damage suffered by each member of the class. The proposed pro rata allocation by reference to the amount contributed by each franchisee will have that effect. 198 Submissions were advanced to the effect that the question of appropriate redress would depend upon a comparison of the objective value of the franchises that were received and operated against what was paid to acquire the value of the businesses. Reliance was placed upon the reasoning in Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 at [47]-[53]. Those submissions are misconceived. In Marks, the Court was dealing with the appropriate approach to assessing damages for misleading and deceptive conduct that was said to have induced a party to enter into a contract. In such cases, the claimant is not entitled to damages assessed as if the represented position had been true, but rather on the basis of what the party would have done had the party known the true position. If the party would have made the same contract in that event then there has been no loss. 199 However, that is not the nature of the loss for which the redress scheme is proposed. It concerns the nature of the loss caused by the unconscionable conduct. It involved misdirecting funds to commissions that Geowash was required by the terms of the franchise agreements to apply to the costs of fit-out and set-up of the particular franchise. A party who was not dealt with unconscionably would have been entitled under the franchise agreement to have those funds applied to fit-out and set-up (or refunded). 200 Franchisees who made their own claims based upon the unconscionable conduct may also have been entitled to orders effecting a rescission of their franchise. Whether they might be granted relief of that kind would depend upon matters including whether they would have entered into the franchise agreement in any event. However, even if they were not entitled to rescission, they were still entitled to have their fees applied in the manner that the franchise agreement required (being the manner in which they were told the fees would be expended). 201 The submissions for Ms Ali and Mr Cameron on this aspect were infected with arguments that were rejected in the Liability Judgment. They treated the amounts paid as if they were part of a purchase price. Indeed, it was submitted that the 'effect of the proposed redress orders would be that each eligible or claiming franchisee would be entitled to some money back from the amount that they paid for the franchise that they purchased and in most instances continue to operate'. This characterisation of the conduct of Geowash, by Ms Ali and Mr Cameron, has been rejected: Liability Judgment at [82]-[93], [569]-[582]. 202 It was also submitted that a number of settlements have already been reached between Geowash and a number of its former franchisees. The terms of those settlements were not before the Court. There were simply statements by Ms Ali to the effect that settlements had been reached. Therefore, there was no foundation for the submission that 'the Court must presume that all issues as to redress between those franchisees and Geowash have been resolved'. In particular, there was no evidence to the effect that redress had been provided under the terms of settlements reached for losses consequent upon the unconscionable conduct. In the absence of any such evidence there is no basis to conclude that settlements in respect of the amounts the subject of the proposed redress orders have been reached. 203 It was also said that the orders sought would 'cut across the issues involved in existing proceedings where Geowash is not a party, and the parties that are involved are not before the Court'. Reference was made to proceedings brought by A1 for Maintenance Pty Ltd who claimed in other proceedings in the Court to have taken an assignment of the rights under the franchise agreements and to be entitled to the payment of franchise fees. It was not explained how the redress orders might 'cut across' those claims. Their existence is not a reason for refraining from making the redress orders. 204 Submissions were advanced to the effect that the proposed orders exceeded the statutory jurisdiction conferred by s 239. In many respects those submissions reduced to no more than a statement that orders of the same kind have not been made in previous cases. Given the nature of the power conferred by s 239 it is to be expected that orders will be framed to meet the particular circumstances and therefore may be of a kind that differs from that made in other cases. The absence of a directly comparable previous case is not a reason why the orders should not be made. 205 Finally, the submissions for Ms Ali and Mr Cameron sought to characterise the proposed orders as being against a person who was not a party to the proceedings because the amount that was sought to be refunded included an amount of $1,187,098 that was found to have been received and retained by Mrs Cameron. The submission is without merit. No order is proposed against Mrs Cameron. The findings as to the amount received and retained by Mrs Cameron included a finding that 'a considerable part passed through Aleja Pty Ltd the trustee of a trust that received commission income under the terms of Mr Cameron's engagement by Geowash': Liability Judgment at [594]. The finding about amounts received by Mrs Cameron was a finding as to where those monies flowed. Mr Cameron was the only person who engaged in any activity that might have led to the payment of commissions by Geowash. There was no evidence of any agreement to the effect that Mr Cameron was providing services on behalf of the trustee of a trust. 206 In any event, the question is whether, in all the circumstances, the conduct of Mr Cameron that has been found to constitute a contravention of the ACL by being involved in the unconscionable conduct of Geowash is such that he ought to be made the subject of a redress order. It is not a condition of the power that it be shown that Mr Cameron received funds or was himself the beneficiary of the conduct. The jurisdictional basis for the order is the involvement of Mr Cameron in the contravening conduct, the appropriateness of the order and the order being of a kind that the Court considers will redress, prevent or reduce loss or damage suffered by a class of persons that includes non-party consumers in relation to the contravening conduct. The form of redress orders 207 Based on the findings made in the Liability Judgment, I am satisfied that the unconscionable conduct of Geowash in which Ms Ali and Mr Cameron were involved was likely to have caused Geowash franchisees (being a class of non-party consumers) to suffer loss and damage being the amounts paid to the benefit of Ms Ali and Mr Cameron that, but for the conduct, should have been expended on fit-out and set-up or refunded to the franchisee. Therefore, the discretion to make a redress order is enlivened provided I am satisfied that it is appropriate to make a redress order and that it will have at least one of the consequences specified in s 239(3). 208 For reasons I have given, I am satisfied that it is appropriate to make redress orders of the kind proposed but confined to the creation of a fund of $1,000,000. On the findings in the Liability Judgment and the evidence generally, there can be a high degree of confidence that the unconscionable conduct enabled commissions at least of that order to be paid to the benefit of Ms Ali and Mr Cameron and retained. Further, given the fact that commissions were paid in respect of payments received from all franchisees it can be inferred that the funds available for each franchisee for fit-out and set-up were depleted. This is not a case where the nature of the conduct suggests that there was a different type of financial consequence for each franchisee. In broad terms, commissions were being paid at the same rate for each franchisee and the balance applied to general Geowash operating costs and fit-out and set-up of franchise premises. 209 Therefore, it is appropriate to make redress orders on the basis of a pro-rata entitlement to payment from the redress fund based upon amounts paid to Geowash for fit-out and set-up. It should exclude amounts paid for other fees such as establishment fees or any other particular fees paid to Geowash. 210 Each of Ms Ali and Mr Cameron should be required to contribute to the fund. Even though the commissions paid to Ms Ali were greater than those paid to Mr Cameron, taking account of the amount of about $550,000 paid into Geowash by Ms Ali to enable franchise premises to be completed and the fact that the dealings of both Ms Ali and Mr Cameron that gave rise to their involvement in the contravening conduct were broadly similar, I consider it to be appropriate that they should each contribute equally to the fund. 211 It seems unlikely that there could be payments to any individual franchisee that are likely to overcompensate if the fund is limited to $1,000,000. However, in the unlikely event that there are only limited claims on the fund, the orders should provide that no party is entitled to redress in an amount that exceeds 20% of the amounts contributed to Geowash (being the findings as to the level of commissions paid). Further, there should be provision for any surplus to be returned to Ms Ali and Mr Cameron in proportion to their contributions to the fund. 212 Orders in the above form would establish a procedure that can be administered by the independent accountant, rather than orders requiring the accountant to make determinations or assessments. The accountant's role would be confined to notifying possible claimants, receiving the amounts from Ms Ali and Mr Cameron, receiving the claims, making the assessment of the pro-rata entitlements, providing a brief report and financial statement to Ms Ali, Mr Cameron and the ACCC setting out the proposed distribution and then after a specified period distributing the fund. 213 The fees of the independent accountant should be met out of the fund. As a practical matter, terms of engagement of the accountant should be arranged by the ACCC and presented to the Court for approval. They should specify a reasonable limit on the fees that might be charged without further Court approval. 214 For the reasons I have given, I am satisfied that orders of the kind I have described should be made. I will make those orders and reserve liberty to apply to vary those orders to ensure they can be practically administered and operate in the manner contemplated by these reasons. 215 Issues arise as to whether all franchisees should be able to make claims against the fund. 216 First, Ms Ali and Mr Cameron maintain that they have reached terms of settlement with some of the franchisees. As I have indicated, the evidence in that regard was at a high level of generality. There was no suggestion that the settlement was reached in circumstances where the parties had in mind the compromise of claims that might be based upon allegations of contravening conduct of the kind upheld in the Liability Judgment. Where a party relies upon a general release of claims it is well established that the release cannot be relied upon to escape the fulfilment of obligations outside the true purpose of the transaction ascertained from the nature of the agreement and its surrounding circumstances: Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112. 217 There was no suggestion that there had been any payment by Geowash, Ms Ali or Mr Cameron to any franchisees as part of the settlement to reflect the fact that commissions had been paid out of the funds paid for fit-out and set-up. In those circumstances, I am not satisfied that any franchisee should be excluded from participating in the fund on the basis that there has been a binding compromise of any underlying right or claim relevant to the contravening conduct as found. 218 Second, in the case of those who entered into the agreement for the establishment of a Geowash outlet in South Fremantle/Beaconsfield, I found that there was an agreed purchase price: Liability Judgment at [188], [530]. The complaint made as to that site was that the quality of the site did not reflect the amount paid: at [193]-[195]. 219 Third, in the case of a Geowash franchise for Rockingham, there was a communication between Ms Ali and the lawyers for Geowash that occurred in January 2016. It concerned a possible franchise agreement being entered into with a Mr Gurdit Singh for a total price of $315,000 plus GST. However, the agreement prepared on those instructions did not provide for a fixed purchase price. It provided for Geowash to charge for actual fit-out costs: Liability Judgment at [542]. On the basis of this evidence and the evidence concerning the South Fremantle/Beaconsfield Geowash site, I found that there was knowledge on the part of the lawyers for Geowash that on some occasions Geowash agreed a fixed price, but this was not the usual case: at [545]. Therefore, it is possible that in addition to the case of the South Fremantle/Beaconsfield Geowash site there were franchisees who agreed a fixed price with Geowash. They did not include the other franchisees who gave evidence in the proceedings. In particular that was not the case for Mr Rajiv Kumar and his company Shri Ganpate Namah Pty Ltd who entered into a franchise agreement and had some dealings with Geowash as to the Rockingham site: at [369]-[418]. An amount of $181,500 was paid to Geowash under that franchise agreement, but no Geowash site was established and no refund was provided: at [409]. 220 On the above basis, I found that there was evidence to the effect that for the South Fremantle site and the site in Rockingham a fixed price was agreed: at [645]. In the case of South Fremantle that was a finding based upon evidence of the arrangements made for that site. In the case of Rockingham it was based upon evidence of dealings between Ms Ali and the lawyers for Geowash, but without evidence as to the dealings with the franchisee, identified in the documents as Mr Gurdit Singh. The consequence is that the unconscionable conduct as found did not extend to the dealings in respect of the South Fremantle site and may not have included any franchise agreement made as a result of dealings with Mr Gurdit Singh. 221 It was submitted for the ACCC that the franchisees for those sites should be entitled to participate in any redress orders because those parties had not participated in the decision and they should not be treated as being bound by those findings. The difficulty with that submission is that the power to make redress orders depends upon the Court being satisfied that those persons should be included in the class of persons who may benefit from the redress orders because the orders will redress, prevent or reduce the loss or damage suffered by them in relation to the contravening conduct. Therefore, on the findings that I have made, the class of non-party consumers to whom the redress orders apply should exclude the franchisee for the South Fremantle site. In the case of Mr Gurdit Singh, the findings do not necessarily preclude participation. 222 However, by reason of the issue as to whether a fixed price was agreed with a franchisee, there should be provision in the orders for a declaration to the effect that the dealings with Geowash were on the basis of an estimate of likely costs of fit-out and set-up to be paid by the franchisee and a fixed price for the franchise site was not agreed with Geowash. I note that the course of requiring an appropriate declaration in order to be able to seek the redress provided for by the orders was adopted by Murphy J in making the redress orders in Domain Register. Orders for findings to be evidence in other proceedings 223 The ACCC seeks an order that a copy of the reasons for judgment in the Liability Judgment with the seal of the Court affixed be retained for the purposes of s 83 and s 137H of the CCA. Those provisions facilitate proof of findings made in proceedings of the present kind in certain other proceedings. No meaningful submission was advanced against the making of that order and I am satisfied that the order should be made. Costs 224 It was submitted for Ms Ali and Mr Cameron that costs could not be dealt with until the Court's decision on remedies was known. I will make orders to facilitate agreement on costs or for the matter to be dealt with on the papers if agreement cannot be reached. I certify that the preceding two hundred and twenty-four (224) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin. Associate: Dated: 24 January 2020