Australian Competition and Consumer Commission v Employsure Pty Ltd [2023] FCAFC 5

Federal Court of Australia

Australian Competition and Consumer Commission v Employsure Pty Ltd [2023] FCAFC 5 Appeal from: Australian Competition and Consumer Commission v Employsure Pty Ltd (No 2) [2021] FCA 1488 Australian Competition and Consumer Commission v Employsure Pty Ltd (No 3) [2022] FCA 3

File number(s): NSD 20 of 2022

Judgment of: RARES, STEWART AND ABRAHAM JJ

Date of judgment: 8 February 2023

Catchwords: CONSUMER LAW – appeal by regulator against civil penalty imposed by primary judge for manifest inadequacy – where penalty discretion miscarried and may be re-exercised by appellate court – where errors in findings of primary judge – where cases with comparative penalties relevant but not highly useful COSTS – whether costs discretion miscarried – where primary judge ordered mostly successful party to pay half of unsuccessful party's costs – where primary judge misapplied principle that successful party generally entitled to costs unless their conduct warrants otherwise – where exercise of discretion miscarried – where penalty hearing necessary – where regulator obtained imposition of penalty – where otherwise successful party unsuccessful on application for injunctive relief – where mostly successful party entitled to its costs subject to discount for failed application

Legislation: Competition and Consumer Act 2010 (Cth) s 137H; Sch 2 ss 29, 34, 48 and 224 Federal Court of Australia Act 1976 (Cth) s 43

Cases cited: AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 399 ALR 599 Australian Competition and Consumer Commission v Cabcharge [2010] FCA 1261 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2015] FCA 330; (2015) 327 ALR 540 Australian Competition and Consumer Commission v Employsure Pty Ltd (No 2) [2021] FCA 1488 Australian Competition and Consumer Commission v Employsure Pty Ltd (No 3) [2022] FCA 3 Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142; (2021) 392 ALR 205 Australian Competition and Consumer Commission v Employsure Pty Ltd (No 2) [2021] FCAFC 157 Australian Competition and Consumer Commission v Employsure Pty Ltd [2020] FCA 1409 Australian Competition and Consumer Commission v Jetstar Airways Pty Ltd [2019] FCA 797; (2019) 136 ACSR 603 Australian Competition and Consumer Commission v Kimberly-Clark Australia Pty Ltd (No 2) [2021] FCA 102 Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 1844; (2007) ATPR 42-200 Australian Competition and Consumer Commission v Oticon Australia Pty Ltd [2018] FCA 1826 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 Australian Competition and Consumer Commission v Samsung Electronics Australia Pty Ltd [2022] FCA 875 Australian Competition and Consumer Commission v Telstra Corporation Ltd [2010] FCA 790; 188 FCR 238 Australian Competition and Consumer Commission v Viagogo AG (No 3) [2020] FCA 1423 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1997] FCA 450; (1997) 145 ALR 36 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1 Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; (2018) 260 FCR 68 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 Gray v Richards (No 2) [2014] HCA 47; (2014) 89 ALJR 113 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 House v The King (1936) 55 CLR 499 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Markarian v The Queen [2005] HCA 25; (1999) 228 CLR 357 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Northern Territory of Australia v Sangare [2019] HCA 25; (2019) 265 CLR 164 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190; (2012) 210 FCR 277 Viagogo AG v Australian Competition and Consumer Commission [2022] FCAFC 87 Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49; (2021) 284 FCR 24 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584