Australian Competition and Consumer Commission v Uber B.V. [2022] FCA 1466

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Uber B.V. [2022] FCA 1466 File number: VID 218 of 2022

Judgment of: O'BRYAN J

Date of judgment: 7 December 2022

Catchwords: CONSUMER LAW – misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law – false or misleading representations with respect to price in contravention of s 29(1)(i) of the Australian Consumer Law – two separate categories of misrepresentation comprising separate courses of conduct – where respondent admitted contraventions – where pecuniary penalty sought by applicant not opposed by respondent – whether aggregate quantum of penalty appropriate for each category of misrepresentation – consideration of principles governing determination of a civil penalty that is appropriate – importance of the mandatory considerations under s 224(2) of the Australian Consumer Law and the centrality of the nature and extent of harm that may be caused by the contravening conduct – inadequate evidence adduced on the question of harm caused by the contravening conduct and other matters – quantum of penalty proposed for one category of misrepresentation not within the range of appropriate penalties – lesser penalty imposed – declarations and ancillary orders made in form sought by the parties

Legislation: Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) ss 13, 18, 29(1)(i), 224, 232, 246(2)(b), 246(2)(d) Evidence Act 1995 (Cth) s 191 Federal Court of Australia Act 1976 (Cth) s 21

Cases cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 Australian Building and Construction Commissioner v Pattinson (2022) 175 ALD 383 Australian Competition and Consumer Commission v AGL South Australia Pty Ltd [2014] FCA 1369 Australian Competition and Consumer Commission v Australian Private Networks Pty Ltd (t/as Activ8me) [2019] FCA 384; 136 ACSR 80 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 Australian Competition and Consumer Commission v Birubi Art Pty Ltd (in liq) [2019] FCA 996; 374 ALR 776 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 634; 317 ALR 73 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (No 2) [2014] FCA 1022; ATPR 42-487 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; 327 ALR 540 Australian Competition and Consumer Commission v Danoz Direct Pty Ltd [2003] FCA 881; 60 IPR 296 Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 Australian Competition and Consumer Commission v Employsure Pty Ltd [2020] FCA 1409 Australian Competition and Consumer Commission v EnergyAustralia Pty Ltd (2014) 234 FCR 343 Australian Competition and Consumer Commission v EnergyAustralia Pty Ltd [2015] FCA 274 Australian Competition and Consumer Commission v Google LLC (No 2) [2021] FCA 367; 391 ALR 346 Australian Competition and Consumer Commission v Google LLC (No 4) [2022] FCA 942 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 Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265; 215 ALR 301 Australian Competition and Consumer Commission v Online Dealz Pty Ltd [2016] FCA 732; ATPR 42-524 Australian Competition and Consumer Commission v Reckitt Benckiser [2016] FCAFC 181; 340 ALR 25 Australian Competition and Consumer Commission v Telstra Corp Ltd [2021] FCA 502; 392 ALR 614 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Competition and Consumer Commission v Volkswagen Aktiengesellschaft [2019] FCA 2166 Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243 Australian Securities and Investments Commission v La Trobe Financial Asset Management Ltd [2021] FCA 1417; 158 ACSR 363 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1 Gill v Ethicon Sarl (No 5) [2019] FCA 1905 Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Limited (1978) 140 CLR 216 Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; ATPR 41-993 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 Singtel Optus v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249 Trade Practices Commission v CSR Ltd [1990] FCA 762; ATPR 41-076 Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 284 FCR 24