Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142

Federal Court of Australia

Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142 Appeal from: Australian Competition and Consumer Commission v Employsure Pty Ltd [2020] FCA 1409

File number: NSD 1183 of 2020

Judgment of: RARES, MURPHY AND ABRAHAM JJ

Date of judgment: 13 August 2021

Catchwords: CONSUMER LAW – misleading or deceptive conduct and making false or misleading representations by causing the publication of Google advertisements in contravention of ss 18(1), 29(1)(b) and 29(1)(h) of the Australian Consumer Law – use of keywords and dynamic keywords in relation to paid Google advertisements – relevant principles in relation to misleading or deceptive conduct and false or misleading representations – appropriate approach to appellate review in a case involving an evaluative decision – whether primary judge erred in the attribution of characteristics to the broad and diverse target audience of the advertisements – whether ordinary or reasonable class members taking care of their own interests were likely to have a range of reasonable reactions to the Google advertisements – whether the primary judge erred in conceiving of only one reasonable reaction – whether primary judge erred in finding the Google advertisements did not convey the alleged representations – whether primary judge erred in relying on the "not insignificant number" test – appeal upheld – matter remitted to primary judge on questions of pecuniary penalty and costs of the proceeding below

Legislation: Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) ss 18, 21, 23, 24, 29 Evidence Act 1995 (Cth) s 140 Trade Practices Act 1974 (Cth) ss 52, 53