Australian Competition and Consumer Commission v HealthEngine Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 20 August 2020
• Neutral Citation: [2020] FCA 1203
• Date: 20 August 2020

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v HealthEngine Pty Ltd [2020] FCA 1203

File number:	NSD 1255 of 2019
Judgment of:	YATES J
Date of judgment:	20 August 2020
Catchwords:	CONSUMER LAW – admitted contraventions of ss 18, 29(1)(b), 29(1)(e) and 34 of the Australian Consumer Law – whether agreed declarations, orders and pecuniary penalty appropriate – application of the course of conduct principle – where agreed form of declarations, orders and pecuniary penalty approved
Legislation:	Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) ss 18, 29(1)(b), 29(1)(e), 34, 224(1)(a)(ii), 246(2)(b), 246(2)(c) Evidence Act 1995 (Cth) s 191 Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG(1)(a)
Cases cited:	The Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	45
Date of hearing:	5 June 2020 and 10 August 2020
Counsel for the Applicant:	Mr S White SC and Ms M Barnes
Solicitor for the Applicant:	Corrs Chambers Westgarth
Counsel for the Respondent:	Mr N Owens SC and Ms F Roughley
Solicitor for the Respondent:	Gilbert + Tobin

ORDERS

		NSD 1255 of 2019
BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	HEALTHENGINE PTY LTD (ACN 138 767 021) Respondent

order made by:	YATES J
DATE OF ORDER:	20 AUGUST 2020

THE COURT DECLARES THAT:

1. During the period 31 March 2015 to 1 March 2018, the Respondent (HealthEngine), in trade or commerce, in connection with the supply or possible supply of services, by publishing feedback received from Patients (Patient Reviews) on HealthEngine's website at www.healthengine.com.au or mobile phone app (together, the Platforms) in circumstances where HealthEngine:

(a) implemented a practice of not publishing negative Patient Reviews, and editing Patient feedback before it was published (as set out in the Revised Schedule of Review Conduct filed 12 December 2019 (Schedule of Review Conduct)); and

(b) failed to disclose to consumers on its Platforms that it engaged in that practice,

(the Review Conduct), represented that the Patient Reviews published on the Platforms in connection with health practices and practitioners across Australia (Health Practices) were an accurate reflection of the Patient Reviews HealthEngine received from Patients about the Health Practices (the genuine reviews representations), when they were not, and thereby:

(c) engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) (ACL); and

(d) made false or misleading representations that the services provided by HealthEngine on the Platforms were of a particular standard, quality, value or grade, in contravention of s 29(1)(b) of the ACL.

2. During the period 31 March 2015 to 1 March 2018, HealthEngine, in trade or commerce, in connection with the supply or possible supply of services, by:

(a) using Patients' responses to a question designed to ascertain whether the Patient would recommend the Health Practice to others (the Ratings Question) to calculate a practice rating for particular Health Practices who chose to participate (the Participating Health Practices); and

(b) failing to disclose to consumers on its Platforms that, where less than 80% of Patients answered 'yes' to the Ratings Question in relation to a Participating Health Practice, instead of publishing a rating, it would publish a notation indicating that the Participating Health Practice had no rating and display a statement to the effect that there was insufficient data to calculate a patient satisfaction level or that the practice did not have a customer satisfaction score; and

(c) where less than 80% of Patients answered 'yes' to the Ratings Question in relation to a Participating Health Practice, publishing on the Platforms a notation indicating that the Participating Health Practice had no rating and displaying a statement to the effect that there was insufficient data to calculate a patient satisfaction level or that the practice did not have a customer satisfaction score,

(the Ratings Conduct),

represented to consumers that it had not received sufficient feedback (either positive or negative) from Patients to enable HealthEngine to calculate and publish on the Platforms a practice rating for the relevant Participating Health Practices (the insufficient feedback representations), when in fact HealthEngine:

(d) had received sufficient feedback; and

(e) was able to publish a practice rating, but chose not to,

and thereby:

(f) engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL; and

(g) made false or misleading representations that the services provided by HealthEngine on the Platforms were of a particular standard, quality, value or grade, in contravention of s 29(1)(b) of the ACL.

3. During the period 31 March 2015 to 1 March 2018, HealthEngine, in trade or commerce, in connection with the supply or possible supply of services, by engaging in the Review Conduct and the Ratings Conduct, engaged in conduct that was likely to create a more positive or favourable impression on consumers who used the Platforms to find a suitable Health Practice, and thereby engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL.

4. During the period 31 March 2015 to 1 March 2018, HealthEngine, in trade or commerce, in connection with the supply or possible supply of services, by publishing Patient Reviews on the Platforms which had been edited to remove negative comments and/or suggestions for improvement, or to embellish them so that they appeared more positive (as set out in the Schedule of Review Conduct), HealthEngine, on each occasion it published such a Patient Review:

(a) engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL; and

(b) made a false or misleading representation that purported to be a testimonial by Patients relating to services provided by Health Practices (the misleading testimonial representations), in contravention of s 29(1)(e) of the ACL.

5. In the period from 30 April 2014 to 30 June 2018, HealthEngine, in trade or commerce, in connection with the supply or possible supply of services, by:

(a) collecting non-clinical personal information (Personal Information) from Patients who used the Platforms or a booking widget embedded on the website of some Health Practices;

(b) asking the Patient whether they wished to receive a call in relation to health insurance comparison services, or to assist the Patient to assess their private health insurance needs (the Health Insurance-Related Services);

(c) not making it adequately clear on the online booking form that if the Patient answered 'yes', their Personal Information would be sent to one of nine different private health insurance brokers (the Insurance Brokers); and

(d) providing Patients' Personal Information to one of the Insurance Brokers,

engaged in conduct that was liable or likely to cause Patients to believe that...