Australian Competition and Consumer Commission v Campbell (No 3)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 19 May 2021
• Neutral Citation: [2021] FCA 528
• Date: 19 May 2021

Federal Court of Australia

Australian Competition and Consumer Commission v Campbell (No 3) [2021] FCA 528

File number:	VID 612 of 2019
Judgment of:	O'BRYAN J
Date of judgment:	19 May 2021
Catchwords:	CONSUMER LAW – application for remedies under the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) – contraventions of ss 18, 29(1)(g), 36(3) and 36(4) of the Australian Consumer Law – where the respondents sold franchises to consumers representing that those franchises would be operational within 12 months, and received payments from franchisees on that basis, but in most instances did not supply a franchise within that period or at all – where the contravening conduct caused substantial loss to franchisees – where the first respondent is in liquidation and the third respondent has limited financial resources – where the parties have jointly filed statements of agreed facts and admissions – where the applicant and third respondent have agreed penalties and filed joint submissions in support of agreed penalties – where the first respondent does not oppose the orders sought by the applicant – consideration of the relevant principles to the assessment of pecuniary penalties, non-party consumer redress orders, declaratory and injunctive relief ; STATUTORY INTERPRETATION – proper construction of s 227 of the Australian Consumer Law – meaning and effect of the requirement to give preference to making an order for compensation – whether orders proposed by the applicant satisfy that requirement
Legislation:	Bankruptcy Act 1966 (Cth) s 82(3) Competition and Consumer Act 2010 (Cth) ss 80, 137H Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) ss 4, 18, 29(1)(g), 36(3), 36(4), 224, 227, 232, 233, 239, 240(1), 240(3) Corporations Act 2001 (Cth) s 553B Evidence Act 1995 (Cth) s 191 Federal Court of Australia Act 1976 (Cth) s 37AF(1)
Cases cited:	Australian Competition and Consumer Commission v ACN 117 372 915 Pty Ltd (in liq) (formerly Advanced Medical Institute Pty Ltd) [2015] FCA 368; ATPR 42-498 Australian Competition and Consumer Commission v AGL South Australia Pty Ltd [2015] FCA 399; 146 ALD 385 Australian Competition and Consumer Commission v Birubi Art Pty Ltd (in liq) (No 3) [2019] FCA 996; 374 ALR 776 Australian Competition and Consumer Commission v Campbell [2019] FCA 886 Australian Competition and Consumer Commission v Campbell (No 2) [2019] FCA 1487 Australian Competition and Consumer Commission v Clinica Internationale Pty Ltd (No 2) [2016] FCA 62 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 Australian Competition and Consumer Commission v Geowash Pty Ltd (Subject to a Deed of Company Arrangement) (No 4) [2020] FCA 23; 376 ALR 701 Australian Competition and Consumer Commission v Pratt (No 3) (2009) 175 FCR 558 Australian Competition and Consumer Commission v Reebok Australia Pty Ltd [2015] FCA 83; ATPR 42-501 Australian Competition and Consumer Commission v STA Travel Pty Ltd [2020] FCA 723 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243 Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) (2011) 195 FCR 1 Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 Australian Securities and Investments Commission v Dover Financial Advisers Pty Ltd (No 3) [2021] FCA 170 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Foster v Australian Competition and Consumer Commission (2006) 149 FCR 135 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	170
Date of hearing:	2 December 2020, 15 March 2021
Counsel for the Applicant at the hearing on 2 December 2020:	Dr O Bigos QC with Mr A C Roe
Counsel for the Applicant at the hearing on 15 March 2021:	Mr T Begbie QC with Ms J Watson
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the First Respondent at the hearing on 15 March 2021:	Mr A Silver
Solicitor for the First Respondent at the hearing on 15 March 2021:	KCL Law
Counsel for the Third Respondent:	Mr N J Derrington
Solicitor for the Third Respondent:	HWL Ebsworth

ORDERS

		VID 612 of 2019
BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	JUMP LOOPS PTY LTD ACN 611 066 589 (IN LIQ) First Respondent ; SWIM LOOPS HOLDINGS PTY LTD ACN 607 815 636 (IN LIQ) Second Respondent ; IAN MICHAEL CAMPBELL Third Respondent

order made by:	O'BRYAN J
DATE OF ORDER:	19 May 2021

THE COURT DECLARES THAT:

1. The First Respondent contravened:

   1. s 18(1) of the Australian Consumer Law (Australian Consumer Law), being Schedule 2 of the Competition and Consumer Act 2010 (Cth), by engaging in conduct, in trade or commerce, which was misleading or deceptive, or likely to mislead or deceive; and

   2. s 29(1)(g) of the Australian Consumer Law, by making, in connection with the supply or possible supply of services, and the promotion by any means of the supply or use of services, in trade or commerce, a false or misleading representation that the franchises offered by the First Respondent had certain uses, benefits or performance characteristics,

in representing, in the period from March 2016 to February 2019, to each of the persons listed in column B of Annexure A to the Reasons for Judgment of the Court in this proceeding dated today (Judgment), prior to the date listed at column C or D of Annexure A, that an operational...