Australian Competition and Consumer Commission v Geowash Pty Ltd (Subject to a Deed of Company Arrangement) (No 4) [2020] FCA 23

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Geowash Pty Ltd (Subject to a Deed of Company Arrangement) (No 4) [2020] FCA 23 File number: WAD 230 of 2017

Judge: COLVIN J

Date of judgment: 24 January 2020

Catchwords: CONSUMER LAW - application by regulator for relief orders and pecuniary penalties against a company, its sole director and its 'national franchising manager' - where findings as to liability made - where findings of unconscionable conduct and breach of the good faith obligation made - where director and 'national franchising manager' found to be knowingly concerned in the unconscionable conduct - consideration of totality principle and course of conduct principle in assessing penalties - consideration of relativity of penalties between individuals and corporations - where regulator proposed establishment of a non-party consumer redress fund - where loss or damage likely to have been suffered by non-party consumers - consideration of the nature and extent of the power conferred by s 239 of the Australian Consumer Law - consideration of form of consumer redress fund to established - orders made for declarations, pecuniary penalties, injunctions, disqualification and redress

Legislation: Australian Consumer Law ss 21, 224, 238, 239, 240, 241, 243, 248 Competition and Consumer Act 2010 (Cth) ss 76, 83, 51ACB, 51AE, 137H Trade Practices Act 1974 (Cth) s 87AAA

Cases cited: Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 Australian Competition and Consumer Commission v ACN 117 372 915 Pty Ltd (in liq) (formerly Advanced Medical Institute Pty Ltd) [2015] FCA 368 Australian Competition and Consumer Commission v AGL South Australia Pty Ltd [2015] FCA 399 Australian Competition and Consumer Commission v Ashley & Martin Pty Ltd (No 2) [2019] FCA 1739 Australian Competition and Consumer Commission v Burden [2017] FCA 399 Australian Competition and Consumer Commission v Clinica Internationale Pty Ltd (No 2) [2016] FCA 62 Australian Competition and Consumer Commission v Cornerstone Investment Aust Pty Ltd (in liq) (No 5) [2019] FCA 1544 Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liq) [2007] FCAFC 146; (2007) 161 FCR 513 Australian Competition and Consumer Commission v Geowash Pty Ltd (Subject to a Deed of Company Arrangement) (No 3) [2019] FCA 72 Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd (in liq) (No 3) [2017] FCA 1018 Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 2) [2012] FCA 535 Australian Competition and Consumer Commission v Harrison (No 2) [2017] FCA 182 Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698 Australian Competition and Consumer Commission v Multimedia International Services Pty Ltd [2016] FCA 439; (2016) 243 FCR 392 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181 Australian Competition and Consumer Commission v SensaSlim Australia Pty Ltd (in liq) (No 5) [2014] FCA 340 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 Australian Competition and Consumer Commission v We Buy Houses Pty Ltd (No 2) [2018] FCA 1748 Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; (2011) 195 FCR 1 Australian Securities and Investments Commission v Adler [2002] NSWSC 483 Australian Securities and Investments Commission v Citrofresh International Ltd (No 3) [2010] FCA 292 Australian Securities and Investments Commission v Kobelt [2017] FCA 387 Australian Securities and Investments Commission v Kobelt [2019] HCA 18 Australian Securities and Investments Commission v Westpac Banking Corporation (No 3) [2018] FCA 1701 Commissioner for Fair Trading v Digital Marketing and Solutions Pty Ltd t/as Android Enjoyed and Camerasky [2019] NSWSC 370 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2015] FCAFC 118 Director of Consumer Affairs Victoria v Domain Register Pty Ltd (No 2) [2018] FCA 2008 Director of Consumer Affairs Victoria v Wens Bros Trading Pty Ltd [2019] FCA 39 Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301 Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112 Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121 Kobelt v Australian Securities and Investments Commission [2018] FCAFC 18 Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79 Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285 PT Garuda Indonesia Ltd v Australian Competition & Consumer Commission [2012] HCA 33; (2012) 247 CLR 240 Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20 Swishette Pty Ltd v Australian Competition and Consumer Commission [2017] FCAFC 45; (2017) 249 FCR 483 Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 Vella v Commissioner of Police (NSW) [2019] HCA 38