6.6 Harassment and coercion under relevant statutes

In addition to what has been said above, some situations involving duress can successfully be dealt with under s. 50 of the Australian Consumer Law (formerly TPA s. 60):

It could be argued that this provision is underutilised. It does not require the threat of, or the actual commission of, an illegal act (however, such acts certainly would be likely to fall within the scope of the sections). Instead, as far as harassment is concerned, it is sufficient that it is undue. In the light of this, where applicable, the ACL is significantly wider in its scope than the common law contractual action of duress and the common law tort action of intimidation.

A few points must be made about the interpretation of “harassment”. In ACCC v Maritime Union of Australia,^[1] Hill J stated that:

The word “harassment” in my view connotes conduct which can be less serious than conduct which amounts to coercion. The word “harassment” means in the present context persistent disturbance or torment. In the case of a person employed to recover money owing to others, as was the first Respondent in McCaskey, it can extend to cases where there are frequent unwelcome approaches requesting payment of a debt. However, such unwelcome approaches would not constitute undue harassment, at least where the demands made are legitimate and reasonably made. On the other hand where the frequency, nature or content of such communications is such that they are calculated to intimidate or demoralise, tire out or exhaust a debtor, rather than merely to convey the demand for recovery, the conduct will constitute undue harassment … Generally it can be said that a person will be harassed by another when the former is troubled repeatedly by the latter. The reasonableness of the conduct will be relevant to whether what is harassment constitutes undue harassment.^[2]

The term “undue” has been said to ensure “that conduct which amounts to harassment will only amount to a contravention of the section where what is done goes beyond the normal limits which, in the circumstances, society would regard as acceptable or reasonable and not excessive or disproportionate”.^[3] However, it seems that a higher level of harassment is accepted as not being “undue” where the conduct relates to a consumer’s payment for goods or services, as compared to the supply of goods or services. In ACCC v McCaskey,^[4] it was stated that:

Repeated unwelcome approaches to a potential acquirer of goods or services could qualify as harassment and, so qualified, require very little additional evidence, if any, to attract the characterisation of “undue harassment”. On the other hand a consumer who owes money to a supplier can expect repeated unwelcome approaches requesting payment of the debt if he or she does not pay. No doubt such approaches might also qualify as harassment. If legitimate demands are reasonably made, on more than one occasion, for the purpose of reminding the debtor of his or her obligation and drawing the debtor’s attention to the likelihood of legal proceedings if payment is not made, then that conduct, if it be harassment, is not undue harassment. If, however, the frequency, nature or content of the approaches and communications associated with them is such that they are calculated to intimidate or demoralise, tire out or exhaust a debtor rather than convey the demand and an associated legitimate threat of proceedings, the harassment will be undue.^[5]

To summarise, it seems that in assessing whether conduct amounts to harassment, one looks to the type of the conduct (i.e., what is the relevant conduct?). If it is concluded that the conduct amounts to harassment, one must then assess whether the harassment was undue. In doing so, one examines the characteristics of that conduct in the particular case at hand (i.e., how was the conduct carried out in the case at hand?). For this second step of the test, one typically takes account of factors such as the frequency, severity, and nature of the conduct.

It has been held that the “undue” requirement is only associated with harassment. In actions relating to physical force or coercion, the physical force or coercion need, thus, not be “undue”. In explaining the term “coercion”, Hill J stated, in ACCC v Maritime Union of Australia,^[6] that:

“Coercion” … carries with it the connotation of force or compulsion or threats of force or compulsion negating choice or freedom to act … A person may be coerced by another to do something or refrain from doing something, that is to say the former is constrained or restrained from doing something or made to do something by force or threat of force or other compulsion. Whether or not repetition is involved in the concept of harassment, and it usually will be, it is not in the concept of coercion.^[7]

Having given the term “coercion” this meaning, the Court in ACCC v Maritime Union of Australia,^[8] had no difficulty in finding that the formation of a picket line to prevent a vessel from departing constituted coercion, as the picket line was capable of engendering fear in the mind of those in the mooring gang employed to release the vessel for departure.

In ACCC v McCaskey,^[9] a debt collector, acting in a manner described as “very abrupt, authoritative, forceful and demanding”, was held to have used undue harassment and coercion in connection with the payment for goods or services by a consumer contrary to what is now s. 50 of the ACL (formerly s. 60 of the TPA). The Court noted that, for example, threats of criminal proceedings may constitute coercion for the purpose of s. 50. In contrast, in Campbell v Metway Leasing Ltd,^[10] which utilised the then mirror provision (s. 55) of the Fair Trading Act (NSW), McInerney J concluded that legal proceedings which are not themselves vexatious, frivolous or an abuse of process cannot constitute undue harassment or coercion for the purposes of s. 55.

Finally, as far as “physical force” is concerned, in ACCC v Davis^[11] it was held that the holding down and restraining of a consumer while his motor vehicle was being repossessed represented a breach of s. 50.