Australian Communications and Media Authority v V Marketing Australia Pty Ltd (In Liq) (No 4)

This Federal Court judgment is a penalty and final orders decision under the Do Not Call Register Act 2006 (Cth). It followed earlier stages of the proceeding and dealt with what should happen after contraventions had been admitted or established.

The regulator in the case was the Australian Communications and Media Authority, or ACMA. The Court dealt with three different respondents in different ways: V Marketing as the telemarketing company, Balaska as the business on whose behalf many of the calls were made, and Mr Michael Vazquez as the individual who directed or authorised the conduct at V Marketing.

The practical point for business owners is that telemarketing exposure can sit at more than one level. The company making the calls can be penalised. The client business can be treated as having caused the calls. An individual director or operator can also face personal consequences if they knowingly authorise calling activity without reasonably adequate compliance systems.

The case arose from unsolicited telemarketing calls to Australian numbers listed on the Do Not Call Register. The judgment opens by explaining the commercial and social problem the Act is aimed at: unsolicited marketing by phone can be a nuisance, and in the digital age automated dialling and similar tools make telemarketing easier and more scalable than before.

The Do Not Call Register Act creates a register of Australian numbers and prohibits unsolicited telemarketing calls to numbers on that register, subject to the Act’s framework. ACMA brought the proceeding seeking declarations, civil penalties and related relief.

V Marketing was the telemarketing business at the centre of the conduct. On or about 2 April 2013, it entered into a contract, arrangement or understanding with Balaska to carry on telemarketing activity, including making telemarketing calls, on Balaska’s behalf. Balaska was in the business of selling, supplying and installing solar energy systems.

During the period from 1 March 2017 to 30 September 2017, V Marketing gave effect to that arrangement by making 553,630 telemarketing calls to numbers on the Register. The Court’s declarations break the conduct down by days on which calls were made to registered numbers: 89 days during 1 March 2017 to 30 June 2017, and 66 days during 1 July 2017 to 30 September 2017. The orders state that during that whole 1 March to 30 September 2017 period, the calls were made exclusively on behalf of Balaska in respect of Balaska’s solar energy systems.

The conduct then shifted. The Court declared that from mid November 2017 onward, the calls referred to in the declarations were made only in respect of V Marketing’s own solar energy systems, known as Your Choice Solar. Across the period after 30 September 2017 until 27 September 2018, V Marketing made telemarketing calls to numbers on the Register on 140 days. In separate declarations about Mr Vazquez, the Court identified 1 February 2018 to 27 September 2018 as the period in which he was knowingly concerned in 548,688 Your Choice Solar telemarketing calls.

Mr Michael Vazquez was central to the Court’s findings about personal responsibility. The Court declared that throughout 1 March 2017 to 27 September 2018 he was V Marketing’s sole director and directing mind and will, that he directed or authorised V Marketing to make, attempt to make or cause to be made the Balaska and Your Choice Solar calls to registered numbers, and that he knew V Marketing did not have systems reasonably adequate to ensure it did not make telemarketing calls to numbers on the Register.

The case also had an unusual procedural feature. V Marketing had gone into external administration, then liquidation, and was deregistered on 27 September 2024 after the liquidation was finalised. ACMA applied to have the company restored to the register so the civil penalty proceeding could continue. Logan J granted that relief, appointed a liquidator, and made clear that restoration could serve the public interest in deterrence even where a company had already been deregistered.

At this stage, the Court was mainly dealing with penalty and final orders rather than starting from scratch on liability. The judgment records that Balaska had admitted contraventions in its amended defence, and that agreed facts and admissions established the relevant statutory elements against it. The Court also relied on earlier decisions in the same proceeding, including Thomas J’s judgment concerning Balaska’s sole director, Mr McLennan.

The issues were different for each respondent.

For V Marketing, the Court had to decide whether penalties should still be imposed even though the company had been in liquidation and had been deregistered. Logan J held that restoration to the register was appropriate so the proceeding could be completed, and that civil penalty orders could still serve deterrence.

For Balaska, the key issue was not whether the statutory mechanism applied. The judgment states that under s 11(9) of the Act, if a person enters into a contract or arrangement with another person and the other person gives effect to it by making a telemarketing call, the first person is taken to have caused the call to be made. The Court said these were strict liability contraventions. Once the events engaging that provision were proved, the contraventions were taken to have occurred. The real question at penalty stage was whether Balaska should be penalised, given earlier findings that its sole director did not have actual knowledge of the elements of the contraventions and had acted reasonably in response to compliance warnings.

For Mr Vazquez, the Court had to decide what personal penalty and other orders were appropriate after finding that he directed or authorised the calls and knew V Marketing lacked reasonably adequate systems. The orders record that ACMA and Mr Vazquez agreed that a single penalty of $60,000 was appropriate, and the Court accepted that position.

The judgment also shows that the Court was considering standard civil penalty factors such as deterrence, the nature and extent of the contraventions, the circumstances in which they occurred, prior similar conduct, and the financial position of the parties where relevant. The published extract cuts off before the full penalty analysis is completed, so the page should be read with that limit in mind.

The Court made substantial final orders.

First, it restored V Marketing to the ASIC register under the Corporations Act and appointed Mr Brent Kijurina as liquidator. The restoration operated nunc pro tunc from 27 September 2024 so that V Marketing was taken to have remained continuously the first respondent. The Court also preserved earlier leave orders that allowed the proceeding to continue against V Marketing despite its liquidation, while restricting enforcement of any pecuniary penalty without leave of the Court.

Second, the Court declared that V Marketing made telemarketing calls to numbers on the Register on 89 days during 1 March to 30 June 2017, on 66 days during 1 July to 30 September 2017, and on 140 days after that until 27 September 2018. It declared that on each of those days V Marketing contravened s 11(1) of the Act. It also declared that the calls from 1 March to 30 September 2017 were made exclusively on behalf of Balaska, and that from mid November 2017 onward the calls were made only in respect of V Marketing’s own solar energy systems, known as Your Choice Solar.

Third, the Court imposed two separate civil pecuniary penalties on V Marketing: $750,000 for the Balaska telemarketing calls and $750,000 for the Your Choice Solar telemarketing calls, making a total of $1.5 million. The orders state that the total penalty is a debt payable to the Commonwealth, but enforcement is subject to the terms of the Court’s orders because of the liquidation context.

Fourth, the Court declared that Balaska contravened the Act. It found that on or about 2 April 2013 V Marketing entered into an arrangement with Balaska to carry on telemarketing activity on Balaska’s behalf, that during 1 March 2017 to 30 September 2017 V Marketing gave effect to that arrangement by making 553,630 telemarketing calls to numbers on the Register, and that by operation of the Act Balaska caused those calls to be made. Even so, the Court ordered that no civil pecuniary penalty be imposed on Balaska. The order expressly refers to Thomas J’s earlier observations about the reasonableness of Mr McLennan’s conduct and the conclusion that he did not have actual knowledge of the elements of Balaska’s contraventions.

Fifth, the Court made personal orders against Mr Vazquez. It declared that he was knowingly concerned in the making of the Balaska telemarketing calls and the Your Choice Solar telemarketing calls, and that these amounted to ancillary contraventions. It imposed a single civil pecuniary penalty of $60,000 on him.

Sixth, the Court granted forward-looking relief against Mr Vazquez. For five years from the date of the orders, if he proposes to engage in any business activity involving making or causing to be made an unsolicited telephone voice call that directly or indirectly advertises, promotes or offers goods or services, he must give ACMA 14 days' written notice and provide information reasonably required by ACMA for its enforcement functions if requested within 7 days.

Finally, the Court made a costs order against Mr Vazquez. He was ordered to pay ACMA $10,000 within three months. If he pays that amount on time, it stands as ACMA’s costs against him. If he does not, ACMA may apply for a further costs order. The question of costs as against Balaska was reserved, and ACMA was ordered to bear its own costs insofar as they related to the proceedings against V Marketing.

This is a strong compliance case for any business that uses outbound sales calls. The first lesson is structural: if your business engages another company to make telemarketing calls on your behalf, the law may treat you as having caused those calls. That means your exposure can arise from the arrangement itself, not only from direct involvement in each call.

The second lesson is operational: systems matter. The declarations against Mr Vazquez are framed around his knowledge that V Marketing did not have systems reasonably adequate to ensure it did not make calls to numbers on the Register. That is a very practical finding. Courts and regulators do not just ask whether calls happened. They ask what systems existed to stop unlawful calls, who was responsible for those systems, and whether management knew the controls were inadequate.

The third lesson is evidentiary: complaints and warnings matter. The judgment records that ACMA sent Balaska multiple compliance warnings by email on 28 February 2017, 29 April 2017, 31 May 2017, 21 September 2017, 16 October 2017 and 16 November 2017, relating to a total of 13 complaints. ACMA argued that this put Balaska on notice. But the Court’s order not to penalise Balaska shows that what a business does after receiving warnings can materially affect the outcome. Earlier findings that Mr McLennan forwarded warnings to V Marketing and acted reasonably were important.

The fourth lesson is procedural: insolvency is not a clean exit from regulatory exposure. V Marketing had been deregistered, but the Court restored it to the register so the penalty case could be completed. If a regulator is pursuing a civil penalty case, liquidation may affect enforcement and procedure, but it does not necessarily end the matter.

The fifth lesson is personal: directors and operators should not assume the corporate structure will absorb all risk. Where an individual directs or authorises telemarketing conduct and knows the compliance systems are not reasonably adequate, personal penalty and future conduct orders are real possibilities.

For business readers, one of the most useful parts of the judgment is how much turns on documents, admissions and conduct over time.

Balaska’s position was shaped by an agreed statement of facts and admissions on the pleadings. Those materials established the arrangement with V Marketing, the 553,630 calls during the relevant period, and the operation of the statutory provision that treated Balaska as having caused the calls. In other words, the legal result did not depend on proving that Balaska personally dialled numbers or even that its sole director knew every element of the contraventions.

At the same time, the Court’s refusal to impose a penalty on Balaska shows that conduct after warnings can still matter greatly. Thomas J’s earlier findings, expressly picked up in Logan J’s orders, were that Mr McLennan did not have actual knowledge of the elements of the contraventions and that his conduct in response to the warnings was reasonable and proportionate. That distinction is important. A business can still contravene the Act under the statutory mechanism, but the evidence about knowledge and response may affect penalty.

For V Marketing and Mr Vazquez, the critical conduct was different. The Court focused on the making of calls to numbers on the Register, the scale of those calls, and Mr Vazquez’s role in directing or authorising them while knowing the company lacked reasonably adequate systems. That is the kind of finding that usually reflects a failure of internal controls, supervision and compliance design.

Businesses should therefore think about telemarketing compliance in documentary terms as well as legal terms. If a regulator asks questions, can you produce the contract with the provider, the compliance settings, the list-checking process, the complaint log, the escalation path, and the records showing what management did after warnings were received? If not, the absence of records can become part of the problem.

The judgment was delivered on 31 March 2025 by Logan J in the Federal Court of Australia.

The key conduct periods recorded in the orders are 1 March 2017 to 30 September 2017 for the Balaska campaign, and from mid November 2017 onward for the Your Choice Solar campaign, with the declarations against Mr Vazquez identifying 1 February 2018 to 27 September 2018 as the period in which he was knowingly concerned in 548,688 Your Choice Solar calls.

V Marketing was under external administration from 20 August 2019 to 26 September 2024 and was deregistered on 27 September 2024. The Court restored it to the register for the purposes of these proceedings and appointed a liquidator so the matter could be finalised.

This case note is based on the Federal Court judgment in Australian Communications and Media Authority v V Marketing Australia Pty Ltd (In Liq) (No 4) [2025] FCA 287, delivered on 31 March 2025.

The published material used here includes the Court’s orders and part of the reasons. Because the available text is truncated before the full penalty discussion concludes, this page focuses on the declarations, orders, dates, call volumes and reasoning that are expressly stated. It does not attempt to reconstruct any missing parts of the Court’s detailed penalty analysis.