Australian Competition and Consumer Commission v BAJV Pty Ltd [2014] FCAFC 52

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v BAJV Pty Ltd [2014] FCAFC 52 Citation: Australian Competition and Consumer Commission v BAJV Pty Ltd [2014] FCAFC 52

Appeal from: Australian Competition and Consumer Commission v BAJV Pty Ltd [2013] FCA 666

Parties: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v BAJV PTY LTD (ACN 094 966 953) and BRENDON AYERS

File number: TAD 23 of 2013

Judges: RARES, JESSUP AND FLICK JJ

Date of judgment: 2 May 2014

Corrigendum: 2 May 2014

Catchwords: CONSUMER LAW – penalties – conduct admittedly unconscionable – representations admittedly false or misleading – determination of appropriate penalties – appeal from single Judge – whether primary Judge erred in identifying period over which contraventions occurred – relevance of size of contravener to level of penalty – at time of contraventions, contravener half-owned by large multi-national company – at time of determination of penalty, contravener a family company – whether error to consider size of contravener as at latter time – whether primary Judge erred in failing to fix penalties which conformed with his own description of "lower end of mid-range" – whether open to primary Judge to fix lower penalty on account of regulator's failure to respond to correspondence from contravener – relevance of that failure to award of costs in favour of regulator. PRACTICE AND PROCEDURE – costs – regulator successful in consumer protection action – relationship between penalty and costs – regulator's failure to respond to correspondence from contravener – relevance of that failure to award of costs in favour of regulator.