Australian Competition and Consumer Commission v Employsure Pty Ltd (No 2)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 29 November 2021
• Neutral Citation: [2021] FCA 1488
• Date: 29 November 2021

Federal Court of Australia

Australian Competition and Consumer Commission v Employsure Pty Ltd (No 2) [2021] FCA 1488

File number(s):	NSD 2384 of 2018
Judgment of:	GRIFFITHS J
Date of judgment:	29 November 2021
Catchwords:	CONSUMER LAW – pecuniary penalties – contraventions of ss 29(1)(b) and 29(1)(h) of the Australian Consumer Law – six Google advertisements conveyed misleading or deceptive government affiliation representation – determination of appropriate penalty – consideration of course of conduct principle – pecuniary penalty of $1 million imposed ; CONSUMER LAW – application for injunctive relief – where contravening conduct inadvertent and unlikely to recur
Legislation:	Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) ss 18(1), 29(1)(b), 29(1)(h), 224, 232
Cases cited:	Australian Competition and Consumer Commission v Australian Private Networks Pty Ltd (t/as Activ8me) [2019] FCA 284 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 Australian Competition and Consumer Commission v Cabcharge [2010] FCA 1261 Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] FCAFC 159; 258 FCR 312 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; 327 ALR 540 Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; 161 FCR 513 Australian Competition and Consumer Commission v Dodo Services Pty Ltd [2021] FCA 589 Australian Competition and Consumer Commission v Employsure Pty Ltd [2020] FCA 1409 Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142; 392 ALR 205 Australian Competition and Consumer Commission v Employsure Pty Ltd (No 2) [2021] FCAFC 157; 392 ALR 452 Australian Competition and Consumer Commission v Homeopathy Plus! Australia Pty Ltd (No 2) [2015] FCA 1090 Australian Competition and Consumer Commission v IPM Operation & Maintenance Loy Yang Pty Ltd [2006] FCA 1777; 157 FCR 162 Australian Competition and Consumer Commission v Jetstar Airways Pty Ltd [2019] FCA 797; 136 ACSR 603 Australian Competition and Consumer Commission v Pental Limited [2018] FCA 491 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640 Australian Competition and Consumer Commission v Viagogo AG (No 3) [2020] FCA 1423 Australian Competition and Consumer Commission v Visa Inc [2015] FCA 1020 Australian Energy Regulator v Snowy Hydro Limited (No 2) [2015] FCA 58 Australian Securities and Investments Commission v MLC Nominees [2020] FCA 1306 Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 252 CLR 482 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1 Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; 260 FCR 68 Lowe v R [1984] HCA 46; 154 CLR 606 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Minister for Immigration and Border Protection v Hallmark Computer Pty Ltd [2016] FCA 678; 334 ALR 677 Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; ATPR 41-993 Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; 168 FCR 383 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; 71 FCR 285 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; 282 FCR 580 Royer v Western Australia [2009] WASCA 139 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 24 Trade Practices Commission v CSR Ltd [1990] FCA 521; (1991) ATPR 41-076
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	129
Date of hearing:	10 November 2021
Counsel for the Applicant:	Mr N Owens SC with Ms D Forrester
Solicitor for the Applicant:	Corrs Chambers Westgarth
Counsel for the Respondent:	Dr R Higgins SC with Mr C Bannan
Solicitor for the Respondent:	Webb Henderson

ORDERS

		NSD 2384 of 2018
BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	EMPLOYSURE PTY LTD ACN 145 676 026 Respondent

order made by:	GRIFFITHS J
DATE OF ORDER:	29 November 2021

THE COURT ORDERS THAT:

1. Employsure Pty Ltd is to pay to the Commonwealth within 28 days of the date of this order a pecuniary penalty in the amount of $1 million, in respect of the contraventions the subject of the declaration made by the Full Court in Australian Competition and Consumer Commission v Employsure Pty Ltd (No 2) [2021] FCAFC 157.

2. The Court declines to grant any injunctive relief.

3. The parties should consider these orders and the reasons for judgment and, within 14 days hereof, each should file and serve written submissions (not exceeding five pages in length) and adduce any additional evidence on the question of costs, not only costs of the original trial, but also in relation to the question of relief. Each party should within a further seven days file any written submissions in response, not to exceed two pages, and any objections to evidence.

4. The issue of costs of both the trial and hearing on relief will then be determined on the papers and without a further oral hearing.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

1. By orders dated 27 August 2021, the Full Court declared that the respondent (Employsure) contravened ss 18, 29(1)(b) and 29(1)(h) of the Australian Consumer Law (ACL) (see Sch 2 to the Competition and Consumer Act 2010 (Cth)), through six Google advertisements (the six Google Ads) the subject of the appeal. Those advertisements were displayed in response to Google searches for “fair work ombudsman” and other related search terms over the period from 10 August...