Australian Competition and Consumer Commission v Employsure Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 08 February 2023
• Neutral Citation: [2023] FCAFC 5
• Date: 08 February 2023

Federal Court of Australia

Australian Competition and Consumer Commission v Employsure Pty Ltd [2023] FCAFC 5

Appeal from:	Australian Competition and Consumer Commission v Employsure Pty Ltd (No 2) [2021] FCA 1488 Australian Competition and Consumer Commission v Employsure Pty Ltd (No 3) [2022] FCA 3
File number(s):	NSD 20 of 2022
Judgment of:	RARES, STEWART AND ABRAHAM JJ
Date of judgment:	8 February 2023
Catchwords:	CONSUMER LAW – appeal by regulator against civil penalty imposed by primary judge for manifest inadequacy – where penalty discretion miscarried and may be re-exercised by appellate court – where errors in findings of primary judge – where cases with comparative penalties relevant but not highly useful ; COSTS – whether costs discretion miscarried – where primary judge ordered mostly successful party to pay half of unsuccessful party’s costs – where primary judge misapplied principle that successful party generally entitled to costs unless their conduct warrants otherwise – where exercise of discretion miscarried – where penalty hearing necessary – where regulator obtained imposition of penalty – where otherwise successful party unsuccessful on application for injunctive relief – where mostly successful party entitled to its costs subject to discount for failed application
Legislation:	Competition and Consumer Act 2010 (Cth) s 137H; Sch 2 ss 29, 34, 48 and 224 Federal Court of Australia Act 1976 (Cth) s 43
Cases cited:	AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 399 ALR 599 Australian Competition and Consumer Commission v Cabcharge [2010] FCA 1261 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2015] FCA 330; (2015) 327 ALR 540 Australian Competition and Consumer Commission v Employsure Pty Ltd (No 2) [2021] FCA 1488 Australian Competition and Consumer Commission v Employsure Pty Ltd (No 3) [2022] FCA 3 Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142; (2021) 392 ALR 205 Australian Competition and Consumer Commission v Employsure Pty Ltd (No 2) [2021] FCAFC 157 Australian Competition and Consumer Commission v Employsure Pty Ltd [2020] FCA 1409 Australian Competition and Consumer Commission v Jetstar Airways Pty Ltd [2019] FCA 797; (2019) 136 ACSR 603 Australian Competition and Consumer Commission v Kimberly-Clark Australia Pty Ltd (No 2) [2021] FCA 102 Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 1844; (2007) ATPR 42-200 Australian Competition and Consumer Commission v Oticon Australia Pty Ltd [2018] FCA 1826 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 Australian Competition and Consumer Commission v Samsung Electronics Australia Pty Ltd [2022] FCA 875 Australian Competition and Consumer Commission v Telstra Corporation Ltd [2010] FCA 790; 188 FCR 238 Australian Competition and Consumer Commission v Viagogo AG (No 3) [2020] FCA 1423 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1997] FCA 450; (1997) 145 ALR 36 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1 Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; (2018) 260 FCR 68 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 Gray v Richards (No 2) [2014] HCA 47; (2014) 89 ALJR 113 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 House v The King (1936) 55 CLR 499 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Markarian v The Queen [2005] HCA 25; (1999) 228 CLR 357 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Northern Territory of Australia v Sangare [2019] HCA 25; (2019) 265 CLR 164 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190; (2012) 210 FCR 277 Viagogo AG v Australian Competition and Consumer Commission [2022] FCAFC 87 Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49; (2021) 284 FCR 24 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	119
Date of hearing:	11 August 2022
Counsel for the Appellant:	Mr N Owens SC and Ms D Forrester
Solicitor for the Appellant:	Corrs Chambers Westgarth
Counsel for the Respondent:	Mr A Bannon SC and Mr C E Bannan
Solicitor for the Respondent:	Clayton Utz

ORDERS

		NSD 20 of 2022
BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Appellant
AND:	EMPLOYSURE LTD ACN 145 676 026 Respondent

order made by:	RARES, STEWART AND ABRAHAM JJ
DATE OF ORDER:	8 February 2023

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Order 1 made by the primary judge in NSD 2384 of 2018 on 29 November 2021 be set aside and in lieu thereof it be ordered that the Respondent pay to the Commonwealth of Australia within 30 days a pecuniary penalty of $3 million pursuant to s 224 of the Australian Consumer Law (ACL), contained in Sch 2 to the Competition and Consumer Act 2010 (Cth), in respect of the contraventions of the ACL identified in Order 1 made by the Full Court on 27 August 2021.

3. Order...