Case: Australian Consumer and Competition Commission v Contact Plus Group Pty Ltd (in liq) [2006] FCA 396
Outcome: referred to
It must be borne in mind that the persons to whom Mr Spencer was required to provide the documents were former franchisees of Contact Plus. Those persons had had a very unhappy experience with Contact Plus and Mr Spencer. Mr Spencer had threatened to commence legal proceedings against a number of the former franchisees: see Australian Consumer and Competition Commission v Contact Plus Group Pty Ltd (in liq) [2006] FCA 396 at [29] . The content of the 6 April email shows that Mr Spencer maintained considerable ill-will towards the intended recipients of the email. It also reveals that he felt aggrieved by the outcome of the proceedings and was antagonistic towards the applicant and the addressees of the email. 37 Paragraph 9 of the Orders provided that the facts set out in the attached statement of agreed facts constitute findings of fact for the purpose of s 83 of the Act. An obvious purpose of paragraph 13 of the Orders was, therefore, to inform those persons to whom the Orders were to be sent of the findings of fact that had been made against the respondents. Once informed of the findings of fact, they could take them into account in determining whether any, and if so what, action should be taken by them against the respondents to protect or assert their rights. The excision of the agreed statement of facts from every copy of the Orders that Mr Spencer provided must be seen in this light. I find that the excision of the agreed statement of facts was intentional. 38 In the course of cross-examination, Mr Spencer was asked to explain why it would not have been easy for him to send the Orders by email, without being password protected. His answers were as follows: 'These people have been very, very difficult to deal with. Since 2003 I have constantly had this thing on my back. Constantly. No let up. These people have vexatiously sent emails on mass distribution lists. The copies were submitted in all this paperwork. They have been vexatious about this whole case right through. They are Ms Ford and Byron are not part of the ACCC action but they have been watching, commenting and even appearing at the back of one of my pre-motion hearings. They are aware of everything that has been going on and they cannot wait to stick it up me. Consequently this. To answer the question is that sending by email is not it is like throwing a dart. Closing your eyes and throwing at a dart board. Because the email address is alive today does not mean to say it has been redirected. It was a commercial email address, fordrec. I have no idea whether in the last two years I have had any contact with this lady whether she has moved, sold her business or whatever. If her email address was jillford@bigpond my answer to this gentlemen would have been I would have been more at ease sending it to a personal email address but not a commercial email address. MR MOORE: My question could you explain to his Honour why it would not have been easy for you to send a document that was not password protected to the email address of Ms Ford? --- And my answer was I had no idea whether that email address was still active and I wanted to find out.' 39 Later in Mr Spencer's evidence, I asked him whether, in view of the feelings he had described towards Ms Ford and others, he had taken the view that he wanted to make it difficult for them to access the Orders, including the agreed statement of facts. His answer was: 'Absolutely not, your Honour, because I knew that they would do exactly what they did and use it against me.' I reject the denial in the first part of this answer. 40 Having carefully considered all of the evidence, I find that Mr Spencer took a series of steps, deliberately, to render it difficult for the recipients of the emails to access and read the terms of the Orders. He knew that the email recipients would be most unlikely to provide him with their personal details, including their current telephone number. He thought it most unlikely that they would take the steps he required to obtain access to the password. He knew that this would tend to defeat the purpose of the Orders, while allowing him to claim that he had technically complied with them. I am also satisfied that Mr Spencer deliberately excised the agreed statement of facts from the Orders. He did so because, as he said in evidence, he did not want the relevant persons to be able to use the agreed statement of facts against him.