Australian Competition & Consumer Commission v Commercial and General Publications Pty Ltd (No 2) [2002] FCA 1349 (1 November 2002)

Last Updated: 1 November 2002

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Commercial and General Publications Pty Ltd (No 2) [2002] FCA 1349

TRADE PRACTICES - consumer protection - penalty - accepting payment where reasonable grounds for believing services will not be provided - payments for advertisements in magazine - magazine not published - lack of contrition - whether understandable - appropriateness of criminal proceedings - one man company - company with no assets - whether separate penalty for company appropriate

COSTS - prosecutions under Trade Practices Act 1974 (Cth) - bulk of informations dismissed - appropriate order - pro bono representation - whether set off for penalty - quantum of fees recoverable

Trade Practices Act 1974 (Cth) s 58(b)

Crimes Act 1914 (Cth) s 16A

Federal Court of Australia Act 1976 (Cth) s 43(2)

Federal Court Rules O 80 r 9

Australian Competition and Consumer Commission v The Vales Wine Company Pty Ltd (1996) ATPR 41-528 at 42,776 mentioned

Australian Competition and Consumer Commission v GIA Pty Ltd [2002] FCA 1298 mentioned

Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd [1999] FCA 1175 followed

Cretazzo v Lombardi (1975) 13 SASR 4 at 11 applied

Holder v Searle (1998) 44 IPR 1 at 23 cited

Brimaud v Boston Securities Entertainment Investments Pty Ltd [1998] FCA 1392 cited

Collector of Customs v Reg Russell and Sons Pty Ltd [1995] FCA 562 cited

Beagle Management Ltd v Targridge Ltd [1997] FCA 31 cited

Schokker v Commissioner of Taxation (No 2) [2000] FCA 1734; (2000) 106 FCR 134 at [11] cited

Chancliff Holdings Pty Ltd v Bell [1999] FCA 1783 cited

Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 cited

Tennakoon v Minister for Immigration & Multicultural Affairs [2001] FCA 615 cited

Da Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 114 ALR 708 at 711-713 cited

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v COMMERCIAL AND GENERAL PUBLICATIONS PTY LTD (NO 2)

(T32 OF 2001)

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v ANTHONY ROBERT HASSETT (NO 2)

(T33 OF 2001)

HEEREY J

1 NOVEMBER 2002

MELBOURNE (HEARD IN HOBART)

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T32 OF 2001

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION PROSECUTOR
AND:	COMMERCIAL AND GENERAL PUBLICATIONS PTY LTD DEFENDANT T33 OF 2001
BETWEEN	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION PROSECUTOR
AND:	ANTHONY ROBERT HASSETT DEFENDANT

JUDGE:	HEEREY J
DATE:	1 NOVEMBER 2002
PLACE:	MELBOURNE (HEARD IN HOBART)

THE COURT ORDERS THAT:

1. In proceeding T 32 of 2001 the defendant Commercial and General Publications Pty Ltd is convicted on charges 42 to 46.

2. In proceeding T 33 of 2001 the defendant Anthony Robert Hassett is convicted on charges 42 to 46 and ordered to pay a penalty of $1,000 on each charge.

3. In both proceedings the prosecutor pay one half of the defendants' costs, such costs to be taxed in default of agreement.

4. It is directed that the above penalties not be set off against the above costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T32 OF 2001

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION PROSECUTOR
AND:	COMMERCIAL AND GENERAL PUBLICATIONS PTY LTD DEFENDANT T33 OF 2001
BETWEEN	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION PROSECUTOR
AND:	ANTHONY ROBERT HASSETT DEFENDANT

JUDGE:	HEEREY J
DATE:	1 NOVEMBER 2002
PLACE:	MELBOURNE (HEARD IN HOBART)

REASONS FOR JUDGMENT

1 The Australian Competition and Consumer Commission (the Commission) brought forty-one charges against the defendants Anthony Robert Hassett and his company Commercial and General Publications Pty Ltd (CGP) alleging that they asserted a right to payment for unsolicited services contrary to s 64(2A) of the Trade Practices Act 1974 (Cth) (TPA). In a judgment delivered on 22 July 2002 I dismissed those charges: [2002] FCA 900. However, I found proved five charges under s 58(b) of the TPA alleging the acceptance of payment for services where there were reasonable grounds for believing that the defendants would not be able to supply those services. I now have to consider questions of penalties and costs.

Penalties

2 The imposition of penalties for federal offences is subject to s 16A of the Crimes Act 1914 (Cth) which is as follows:

"(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(a) the nature and circumstances of the offence;

(b) other offences (if any) that are required or permitted to be taken into account;

(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character - that course of conduct;

(d) the personal circumstances of any victim of the offence;

(e) any injury, loss or damage resulting from the offence;

(f) the degree to which the person has shown contrition for the offence;

(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii) in any other manner;

(g) if the person has pleaded guilty to the charge in respect of the offence - that fact;

(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;

(j) the deterrent effect that any sentence or order under consideration may have on the person;

(k) the need to ensure that the person is adequately punished for the offence;

(m) the character, antecedents, cultural background, age, means and physical or mental condition of the person;

(n) the prospect of rehabilitation of the person;

(p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants."

3 The payments the subject of the s 58(b) charges were received by the defendants between 13 September and 25 October 1999. In one case the amount received was $195 and in the other four cases $185.25. The amounts were retained by the defendants until 14 April 2002, the day before the commencement of the trial. On that day Mr Hassett, on the advice of his counsel, gave personal cheques for the amounts in question to the Commission. The trial proceeded on 15, 16, 17, 18 and 19 April and 11, 12 and 13 June 2002 and, as already mentioned, judgment was delivered on 22 July.

4 The five payments were received for the insertion of advertisements in the 1999 edition of the Returned Services League (RSL) magazine On Service. CGP had published the 1997 and 1998 editions of On Service (the latter not coming out until March 1999). After a period of uncertainty, the RSL told Mr Hassett in late July that CGP would not be authorised to publish the 1999 edition. The circumstances leading up to this will be referred to in more detail later. Mr Hassett consulted solicitors who protested on his behalf at the decision but, as Mr Hassett later admitted in a s 155 examination, by the time he received a letter dated 11 August 1999 from the RSL confirming its decision, his hope of changing their mind had disappeared. The RSL's position was confirmed by a letter of 29 September 1999 from its solicitors. Mr Hassett's explanation proffered to this court for not repaying the money earlier was that he did not do so until he was advised by counsel and that he was waiting to finalise his complaints against the RSL.

5 The complainants in the s 58(b) charges were not aware that a 1999 edition had not been published until they were advised by the Commission in March 2000 as a result of its investigations.

6 One of the relevant matters both under general principles of sentencing and by virtue of 16A(2)(f) is the contrition of the defendants. Counsel for the Commission submitted that Mr Hassett has shown no contrition. This is true, but perhaps understandable.

7 Had the RSL not denied authorisation for the 1999 edition of On Service, the magazine would have been published and the s 58(b) contraventions would not have occurred. The RSL's action can be traced to two factors. The first was the intervention of the Commission as a result of complainants alleging they had not authorised advertisements in the 1998 edition. The second was the reaction of the RSL to Mr Hassett's using its logo on CGP invoices for advertising in On Service.

8 It is clear that the quality of the 1997 and 1998 editions of On Service was satisfactory to the RSL. Although the 1998 edition was late, that did not seem to concern the RSL unduly or play any part in their decision to dispense with Mr Hassett's further services. However Mr Anthony Scott, the State Secretary, deposed that the RSL received several telephone calls from people complaining they had been billed for advertisements which they had never authorised. He advised them that the RSL had nothing to do with the advertising arrangements and referred them to CGP. Mr Scott deposed:

"At the time [April to June 1999] I did not consider that this was a significant problem and did not make a record of the dates or names of the complainants."

9 Mr Scott continues:

"However, in about June 1999 Mr David MacFie of the Australian Competition & Consumer Commission's (ACCC) Hobart office contacted me. He told me that the ACCC had concerns about Hassett/CGP's conduct in relation to some of the advertising appearing in On Service.

In July 1999, Tony Hassett again came to see me at RSL headquarters about CGP publishing the next edition of On Service. Mr Hassett said that he was aware of positive feedback from RSL members to the 1998 edition of On Service and on this basis was expecting to get the go ahead for the next edition of On Service. I was considering the advice from the ACCC, and was of the view that, in this case I should consult with the RSL State Executive."

10 Mr Scott says that Mr Hassett appeared to be very agitated about not getting the go ahead and said if it did not occur his company would have to go into liquidation. Mr Scott wanted to "stall" Mr Hassett until he had consulted with the State Executive "about Hassett/CGP's conduct in relation to some of the advertisers". He told him that he would speak to the Acting State President and phone back on the following Monday.

11 Mr Scott then met again with Mr MacFie who showed him invoices CGP had sent out for advertising appearing in On Service with the RSL logo prominently displayed. Mr Scott informed the Acting State President Mr John O'Connor and the Vice-President Mr John Paul who said that this was the first they knew of use of the logo and that Mr Hassett had never been given permission to use it. Mr Paul was, according to Mr Scott, "most displeased". Mr O'Connor told Mr Scott to tell Mr Hassett that the RSL would not agree to him publishing the next edition. On Monday 26 July 1999 Mr Scott telephoned Mr Hassett and conveyed the RSL's decision not to authorise the publishing of the next edition.

12 The RSL's reaction to Mr Hassett's use of their logo seems excessive and unreasonable. On Service was the official journal of the RSL and it was in the interests of the RSL, at least indirectly, that advertisers pay their accounts to CGP. Mr Hassett had not been using the logo for a purpose unconnected with the RSL or to get some improper advantage for himself. He was given no opportunity to explain his actions. In any event, a fairer and more sensible course might have been simply to tell Mr Hassett that he was not to use the logo in the future. Of course, the Commission cannot be blamed for the stand the RSL took in relation to its logo, but it is clear from Mr Scott's affidavit that their contact with the RSL about the allegations of non-authorisation was a contributing cause to the RSL's decision.

13 The Commission's decision to prosecute Mr Hassett and CGP had even more disastrous consequences. There are grounds for disquiet as to why this prosecution was brought.

14 There were in evidence three magazines published by CGP over the period 1997 to 1999, two editions of On Service and one of Country Women Calling for the Country Women's Association (CWA). They contain a total of 578 advertisements, each one of which, it may be inferred, was produced by a telephone approach from Mr Hassett in the way described in my earlier judgment. If Mr Hassett was engaged by way of systematic practice in the conduct of which the complainants complained, one might have expected to see many more complaints from the remaining 570 advertisers. In fact the complaint rate was only about 1.4 per cent.

15 In deciding whether or not to commence this prosecution, consideration might have been given to the following factors:

* Mr Hassett was a reputable small businessman with over twenty years experience in publishing in Tasmania. During that time he has published over 100 magazines which included approximately 22,000 advertisements. He had no prior convictions. He was no fly-by-night or confidence man.

* His business was not only legitimate, but socially beneficial. A magazine is an important asset for valuable community organizations like the RSL and the CWA. Mr Hassett was able to provide quality publications for these organizations without cost or risk to them.

* Although one detects some distaste within the Commission for Mr Hassett's business method (the description "telephone blowing" was used by its counsel), seeking business by unsolicited telephone calls and relying on oral authorisation confirmed by the trader's written advice is perfectly lawful for the kind of business in which Mr Hassett was engaged, in contrast to the specific prohibition in s 64(3) and (4) of the TPA concerning entries in directories.

* It was not surprising in the circumstances that there might be some disputes as to the terms of oral conversations. As I said in my earlier judgment, [2002] FCA 900 at [42]- [43]:

"There is a human tendency, and not necessarily a conscious or dishonest one, for people to reconstruct past events in a way which is supportive of their interests. The further back in time the event is when they are first called upon to recollect, the stronger is that tendency. And the tendency is all the more persuasive when people have no objective evidence ready to hand that stands in the way of a self-serving reconstruction.

In the present case there was typically a delay of some ten to twelve months between the time of the complainant's conversation with Mr Hassett and the time an invoice was received. In some instances the complainant's capacity for objective recollection was likely to be affected by the fact that the business had been closed down or sold, with the consequence that they would get no value for the money now being demanded. And in respect of some complainants there was a mistaken assumption that no legal liability would attach unless the complainant had signed a document, which would make it all the easier to reconstruct the telephone conversation as something tentative, provisional and non-binding."

* The low percentage of complaints suggested that perhaps it might have been the complainants who were at fault rather than Mr Hassett, or at the very least that there might be a reasonable doubt as to the reliability of their accounts.

* The expense and publicity of criminal proceedings could well destroy Mr Hassett's business, regardless of the court outcome.

16 If, for the kind of considerations referred to, it was decided not to prosecute s 64(2A) charges, the case loses a great deal of its sting. The complainants who had not received their money's worth for the aborted 1999 edition of On Service had simple and unanswerable civil claims which, if necessary, the Commission could have brought on their behalf.

17 Mr Hassett closed down CGP's business at the end of 1999. He deposes, and one can well accept, that in the small Tasmanian publishing industry he knew he would not be able to continue publishing due to the manner in which word had already spread about the Commission's investigations. Prior to the trial a friend brought to him a Commission brochure which had been placed on the display counter at a Hobart restaurant and which detailed the charges brought against him. This caused Mr Hassett "immense distress".

18 He obtained part time work with the Tasmanian Senior and Tasmanian Farmer newspapers. He lost much time off as a result of stress. His anxiety and stress were such that in October 2001 he found he could no longer work and he lost his job.

19 He retained the assistance of a Mr Alex Graeme-Evans, believing him to be a lawyer. Mr Evans made various submissions to Parliament, the Commission and other bodies. It subsequently appears Mr Graeme-Evans did not have a legal practising certificate. Mr Hassett paid Mr Graeme-Evans $27,500. He obtained the funds for this by mortgaging his home.

20 Subsequently Mr Hassett had to sell his home. After the discharge of the mortgage and other costs he has approximately $101,000 in a credit union account. Mr Hassett wants to keep this for his daughters. He was separated from his wife in 1996 and left with their twin daughters, now aged 19 and students at the University of Tasmania. His only source of income is a Centrelink pension and his daughters' Austudy allowances. They live in a rented home. Finances are very tight. It has been difficult to provide textbooks for the girls and at times there is not enough money for food or heating.

21 Since 1984 Mr Hassett's general practitioner has been Dr Martin Ward of Kingston. Dr Ward first treated Mr Hassett for some twelve years for severe hay fever and allergies. In 1996 Mr Hassett's separation, divorce and property settlement had led to severe stress. From late 1999 Mr Hassett saw him in relation to the medical consequences of the Commission's investigations and the prosecution. In a report dated 9 October 2002 Dr Ward says:

"Virtually every one of the sixteen consultations that year [ie 2000] consisted largely of debriefing over the state of the case and his stress levels. With his divorce he was severely stressed to begin with but rapidly got on top of it. This year however he did not improve and the nineteen consultations in 2001 were much the same as the year before. For the first time I prescribed a powerful benzodiazepine for him to help cope. The state of his physical health became of secondary importance to him and I had great difficulty getting him to have a couple of physical problems I was concerned about followed up as they should be. Previously he had looked after himself very well.

2002 has been a bit better but he is not back to anywhere near his normal self. He has been anxious, totally taken up with his court case to the detriment of his normal life and health. He should perhaps have been on more medication but could not really afford to risk blunting his ability to think clearly. I have been impressed previously with his ability to bounce back from adversity but I am not all sure that he can come back from this easily or at all. At the moment he is driven by a determination to vindicate himself but what will happen to him when this is truly over is not clear."

22 While the personal situation of Mr Hassett excites considerable sympathy, the fact remains that he has contravened the TPA. Practically speaking he is unlikely to get back into the publishing business again on his own account (he is aged 58) and even if he does I think the trauma of the present proceedings will be such that any further contravention by him is extremely unlikely.

23 As to general deterrence, an important consideration in the deterrence of s 58(b) contraventions is that the amount of the penalty should be substantially more than the amount of the payment accepted. The risk/reward calculation is very relevant for this kind of offence. Traders should not be encouraged to think that it is worthwhile to accept and retain payments for services which are not likely to be delivered because if the worst comes to the worst the penalty might be a bit more than the payment.

24 In the present case the amounts are not large and the complainants had effectively forgotten about them. The maximum penalty for an individual at the time of the offences was $40,000. Having regard to the fact that the amounts have been repaid, I think the penalty proposed by the Commission of $1000 for each offence for Mr Hassett is appropriate.

25 Mr Hassett's income position is parlous. While he understandably wants to retain his remaining capital for the benefit of his daughters I think it is better for him if no order for payment by instalments is made and the penalty paid out of his credit union account, thus bringing a conclusion to a very difficult episode in his life.

26 As to CGP, the Commission accepts that it has ceased trading and has no assets. In itself those are not circumstances which ought to prevent the imposition of penalties. In Australian Competition and Consumer Commission v The Vales Wine Company Pty Ltd (1996) ATPR 41-528 at 42,776 dealing with a defendant company in liquidation with no assets O'Loughlin J said:

"Even though (the penalties) may not be recovered, they will serve as a warning throughout the wine industry and elsewhere of the attitude of the court to offences of this nature."

27 I recently followed that observation in Australian Competition and Consumer Commission v GIA Pty Ltd [2002] FCA 1298. However, in the present case there is the circumstance that CGP is the alter ego of Mr Hassett. The conduct which constituted a contravention of the Act was committed by Mr Hassett and nobody else. Such gain as would have resulted from a contravention would, as far as the evidence showed, have accrued to Mr Hassett and nobody else, he being the only shareholder in CGP. If CGP had any assets, to impose separate penalties on Mr Hassett would be punishing him twice. This kind of reality was recognised by Weinberg J in Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd [1999] FCA 1175. That case involved prosecutions of two companies for contravention of s 65C(1)(a) of the TPA by supplying children's bicycles which did not comply with prescribed consumer product safety standards. Starite Distributors Pty Ltd imported the bicycles and Dimmeys Stores Pty Ltd sold them at its retail outlets.

28 It was put to Weinberg J that Starite was no more than a conduit for Dimmeys, that there was in reality only one offence and that Starite should be discharged without conviction. In rejecting this argument His Honour held (at [33]) that Starite's offence, it being an importer, was entirely separate from, though related to, the offence committed by Dimmeys. However, his Honour was prepared to take into account in the defendants' favour the degree of community of ownership. His Honour said (at [39]):

"The evidence establishes clearly that Starite is beneficially owned by Mr Zapelli and the members of his family. He and his family also have a substantial interest in Dimmeys. By fining each defendant separately, the Court is, in effect, punishing Mr Zapelli and his interests twice. Their conduct may warrant separate punishment, but some recognition should be accorded to the fact that the two offences are closely related. In my view these factors warrant the imposition of a somewhat lower penalty than would otherwise be merited upon one of the defendants."

29 The present case is stronger. In reality the identity of the two defendants is the same and the conduct which contravened the TPA is the same. For that reason I would not impose a penalty on CGP. Reference might be made to s 79(2) which discloses, in an analogous situation, a legislative intention that what is in substance one episode of contravening conduct should be punished once and once only. This is but elementary fairness. If it would be unjust to punish Mr Hassett twice over for the same conduct by imposing a penalty on a CGP which had assets, it would be paradoxical to impose a penalty merely because CGP has no assets. An observer might think that the Court was only imposing a penalty when it was satisfied the penalty could not be enforced.

30 As to general deterrence, a court is entitled to act on the assumption that the circumstances of the case in which the penalty is imposed will not be misunderstood or misrepresented. That may seem a trifle idealistic, but there is no other rational way to proceed. On that basis, anyone contemplating a s 58(b) contravention and learning of this case would know that when Mr Hassett, operating his business through a one man company, accepted five payments of just under $200 he was ordered to pay $5,000 even though he had returned the payments. I do not think the deterrent effect would be in any way increased by an empty penalty of the same amount against a company shell.

Costs

31 The Court has a general discretion to award costs under s 43(2) of the Federal Court of Australia Act 1976 (Cth). The discretion must be exercised judicially. However the discretion is unfettered and absolute, in the sense that it is not to be controlled by judge-made rules, as long as it is not exercised arbitrarily or capriciously, or on grounds unconnected with the litigation: Cretazzo v Lombardi (1975) 13 SASR 4 at 11, citing Campbell & Co v Pollak [1927] AC 732.

32 In recent times judges of this Court have adopted a broad brush approach, eschewing an isolation of particular issues and allocation of costs thereto. Rather there have been costs orders which recognise the extent to which parties have been significantly successful in the proceeding: Holder v Searle (1998) 44 IPR 1 at 23; Brimaud v Boston Securities Entertainment Investments Pty Ltd [1998] FCA 1392, Collector of Customs v Reg Russell and Sons Pty Ltd [1995] FCA 562, Beagle Management Ltd v Targridge Ltd [1997] FCA 31. Holder is quite close to the present case. There were three informations alleging copyright infringement. Two informations failed and the conviction on the third was in regard to fewer items than the prosecutor alleged. Spender J awarded the defendant one third of his costs.

33 In the present case my general impression is that three quarters of the trial was taken up with the charges which were dismissed. Apart from a quantitative comparison, the s 64(2A) charges were perhaps weightier in total in that each complainant's case required separate consideration. All in all, I think a just result would be to award the defendants one- half of their costs (i.e. three-quarters less one-quarter). I have not overlooked the Commission's submissions as to the failure of the defendants to abide orders to file and serve affidavits, but I do not see that as sufficient to outweigh the other considerations mentioned. Moreover, credit should be given the defendants for admissions which made it unnecessary to call the s 58(b) complainants.

34 As already mentioned in my earlier judgment, the defendants were represented by counsel under the Court's pro bono scheme established under Order 80 of the Federal Court Rules. Rule 9 of Order 80 provides:

"(1) Subject to rule 10 [which deals with disbursements], a legal practitioner who provides legal assistance to a litigant under the scheme must not seek or recover any professional fees or disbursements for the legal assistance.

(2) However, if an order for costs is made in favour of a litigant who is assisted under the scheme, the legal practitioner who has provided the legal assistance is entitled to recover the amount of fees and disbursements that another party is required to pay under the order."

35 Rule 9(2) does not say from whom the pro bono practitioner is entitled to recover. Is it from the assisted litigant for whom the practitioner acts, or is it from the party ordered to pay the costs? I think the former is the better view; sub-rule (2) is to be seen as an exception to the general rule of sub-rule (1) (which is in turn an exception to the general law which entitles legal practitioners to contract for the payment of fees for professional services, either absolutely or contingent on the success of litigation: Schokker v Commissioner of Taxation (No 2) [2000] FCA 1734; (2000) 106 FCR 134 at [11].) The practice thus far where parties aided under O 80 have succeeded has been to make an order of costs in favour of that party rather than the practitioner: Chancliff Holdings Pty Ltd v Bell [1999] FCA 1783, Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380, Tennakoon v Minister for Immigration & Multicultural Affairs [2001] FCA 615. Rule 9(2) would then enable the practitioner to recover his or her fees and disbursements from the O 80 client either directly or by way of appropriation of monies received from the other party.

36 Problems might arise where the party ordered to pay costs seeks to set off that liability against some order for payment in its favour, such as the penalty I have ordered Mr Hassett to pay. In the present case, as it happens, Mr Hassett will be able to pay the penalty amount. However, as a matter of principle, no such set off should be allowed. For example, if in the present case Mr Hassett had no assets it would seem wrong that the Commission could set off the amount of the penalty against its liability for costs. It is within the general discretion of the Court when dealing with costs to make orders which determine who bears the ultimate burden. Thus, when an order for costs is made against a practitioner personally (see O 62 r 9, Da Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 114 ALR 708 at 711-713) the Court can direct that the practitioner not recover from his or her client an amount paid to the other party under the order. There is a substantial public interest in practitioners undertaking the often burdensome obligations of representation under O 80. In Chancliff Lee J said (at [14] - [15]):

"Order 80 serves the public interest by encouraging practitioners to render public service by providing advice and representation free of charge to indigent parties engaged in litigation in the court. In part, the services are provided by practitioners in performance of a duty to assist the administration of law that arises out of rights and privileges practitioners obtain upon being admitted to practice, or upon being registered as entitled to practice, by a superior court.

Order 80 has been included in the Rules in response to a marked increase in the number of litigants who appear in this Court, a number which continues to expand. If practitioners withdrew from participation in the "pro bono" scheme which operates under O 80 there would be a real risk that efficient disposal of the work of the Court would suffer. Furthermore, in endeavouring to fairly administer the law in circumstances where a party is unable to properly present its case, the impartiality of the Court may appear to be compromised."

37 So in a real sense the practitioner appearing under O 80 has a public role, in addition to the usual professional duties owed to his or her client. Where success, total or partial, in the litigation attracts a costs order, I think that practitioner should be entitled to the full fruits thereof. I will therefore order that the order for costs be not subject to any set off in respect of the penalties ordered to be paid.

38 There remains the question of quantum. In Chancliff Lee J said (at [16]-[17]):

"...The object of O 80 r 9 is to make it clear to practitioners that if, in ordinary circumstances, it would be appropriate for a party to be ordered to pay the costs of the party for whom the practitioner appears an order will be made that will provide some remuneration to the practitioner notwithstanding that the practitioner is not entitled to recover fees from the party the practitioner represents. It is to be noted that a practitioner providing "pro bono" services undertakes similar duties and responsibilities to the party represented, and to the court, as a practitioner instructed by a client who retains the services of a practitioner for reward

It does not follow, however, that the amount of fees the court orders a party to pay, and to be recoverable by the practitioner under 0 80 r 9, will be the full fees ordinarily rendered by the practitioner. The amount will be a sum set by the court after having regard to various matters, being an amount that appears to be a fair sum in all the circumstances."

(emphasis added)

39 His Honour did not indicate the nature of the various matters to be regarded, other than noting that the hearing occupied two full days and involved an "important issue in bankruptcy proceedings". His Honour fixed the fees to be paid under O 80 r 9 at $7,000.

40 If his Honour's observation means that a practitioner recovering under O 80 r 9(2) should get less than he or she would on a party and party taxation where costs were awarded to a non-assisted client, then I must say I do not agree. The text of 0 80 r 9(2) provides no warrant for such a gloss. It may be, however, that all his Honour was saying was that O 80 r 9(2) does not confer a right to recover whatever the practitioner happens to charge. I think that in a substantial case like the present where I was not asked to fix fees (and would not have sufficient information to do so anyway) the quantum should be left to be determined by taxation, in default of agreement.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated: 30 October 2002

Counsel for the Prosecutor:	Mr G Livermore
Solicitor for the Prosecutor:	Director of Public Prosecutions (Cth)
Counsel for the Defendants:	Mrs O McTaggart
Date of Hearing:	18 October 2002
Date of Judgment:	1 November 2002