Real estate agent fined and sentenced to 200 hours of community service for providing false or misleading evidence to ACCC

Real estate agent, Mr John Patrick Neville, was today sentenced in the Federal Court, Sydney after pleading guilty to two charges of giving evidence that was false or misleading in the course of an Australian Competition and Consumer Commission investigation.

Mr Neville was convicted, fined $2,160 and ordered to perform 200 hours of community service.

The ACCC was investigating allegations that a number of real estate agents had entered into an arrangement or understanding to put pressure, through a variety of means, on local publishers of real estate advertisements not to publish the advertisements from two other real estate agents who were seeking to advertise commission rates and a flat fee commission.

In the course of this investigation the ACCC examined Mr Neville under oath, pursuant to section 155 of the Trade Practices Act 1974, about his role in the alleged conduct.

The ACCC began criminal proceedings against Mr Neville in April 2007 in the Federal Court after the ACCC formed the view that he had provided false or misleading responses to the ACCC during two separate section 155 examinations.* Mr Neville pleaded guilty to providing false and misleading evidence in contravention of section 155(5)** at each of the two examinations which he attended.

In handing down the sentence today Justice Lindgren of the Federal Court found that Mr Neville had approached the section 155 process in "a cavalier and offhand manner" and his conduct during the examination was that of denial and laying of a false trail rather than that of minimisation and evasion.

Further, His Honour stated: "It is most important that persons furnishing information or giving evidence in response to a notice issued by the ACCC under s 155 of the TP Act do so frankly and honestly. It serves the public interest that the ACCC be enabled to carry out its investigations efficiently and effectively. Section 155 of the TP Act is directed to that end. If a person who is required to give evidence under s 155(1)(c) of the TP Act gives false or misleading evidence, not only does this have the immediate effect of obstructing and delaying the particular investigation: it also has the potential to direct the ACCC away from other sources of information and to draw human and financial resources away from its other work. The general public should know that conduct of that kind will be treated seriously by the Court."

Justice Lindgren decided a term of imprisonment was not appropriate due to the fact the Defendant was a 63 year old man who had no prior convictions. He also gave weight to the fact he believed Mr Neville was unlikely to reoffend.

ACCC Chairman, Mr Graeme Samuel, said the sentence imposed by the Federal Court reflected the seriousness of obstructing investigations conducted by the ACCC.

"The ACCC's power to issue notices under the Trade Practices Act is an important element in its investigative armoury. Today's decision by the Federal Court indicates there are serious consequences for any companies and individuals who attempt to deflect an ACCC investigation by knowingly furnishing false or misleading information."

Background

*Section 155 of the Act gives the ACCC broad investigatory powers to obtain information, documents and evidence in relation to possible contraventions of the Act.

** Section 155(5) of the Act makes it an offence for a person to knowingly furnish information or evidence that is false or misleading in purported compliance with a section 155 Notice. Each offence under section 155 carries a fine of up to $2,200 or up to 12 months imprisonment.