Australian Competition and Consumer Commission v Samsung Electronics Australia Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 28 July 2022
• Neutral Citation: [2022] FCA 875
• Date: 28 July 2022

Federal Court of Australia

Australian Competition and Consumer Commission v Samsung Electronics Australia Pty Ltd [2022] FCA 875

File number(s):	VID 721 of 2019
Judgment of:	MURPHY J
Date of judgment:	28 July 2022
Catchwords:	CONSUMER LAW – admitted misleading or deceptive conduct and false or misleading representations in contravention of ss 18(1) and 29(1)(a) and (g), and s 33 of the Australian Consumer Law – application for a declaration and pecuniary penalty – principles relevant to assessment of appropriate penalty
Legislation:	Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) ss 18(1), 29, 33, 224 Federal Court of Australia Act 1976 (Cth) s 21
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157 Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 399 ALR 599 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; 327 ALR 540 Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 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 2) [2005] FCA 254; 215 ALR 281 Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; 201 FCR 378 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 Australian Competition and Consumer Commission v Singtel Optus Pty Ltd (No 4) [2011] FCA 761; 282 ALR 246 Australian Competition and Consumer Commission v STA Travel Pty Ltd [2020] FCA 723 Australian Competition and Consumer Commission v Telstra [2010] FCA 790; 188 FCR 238 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2020] FCAFC 130; 278 FCR 450 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640 Australian Competition and Consumer Commission v Valve Corporation (No 7) [2016] FCA 1553 Australian Competition and Consumer Commission v Woolworths Ltd [2016] FCA 44 Australian Securities and Investments Commission v Colonial First State Investments Limited [2021] FCA 1268 Australian Securities and Investments Commission v La Trobe Financial Asset Management Ltd [2021] FCA 1417 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 238 CLR 304 CEO of the Australian Transaction Reports and Analysis Centre v Westpac Banking Corporation [2020] FCA 1538 Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12; 202 CLR 45 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 Director of Consumer Affairs Victoria v Gibson (No 3) [2017] FCA 1148 Forster v Jododex Australia Pty Ltd [1972] HCA 61; 127 CLR 421 Google Inc v Australian Competition and Consumer Commission [2013] HCA 1; 249 CLR 435 Hili v The Queen [2010] HCA 45; 242 CLR 520 Kraft Foods Group Brands LLC v Bega Cheese Ltd [2020] FCAFC 65; 377 ALR 387 Markarian v The Queen [2005] HCA 25; 228 CLR 357 McDonald v Australian Building and Construction Commissioner [2011] FCAFC 29; 202 IR 467 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; 71 FCR 285 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; 149 CLR 191 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; 282 FCR 580 Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 R v Pham [2015] HCA 39; 256 CLR 550 Schneider Electric Proprietary Limited v Australian Competition and Consumer Commission [2003] FCAFC 2; 127 FCR 170 Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 170; 42 ALR 177 Trade Practices Commission v Bata Shoe Company of Australia Pty Ltd (1980) 44 FLR 149 Transport Workers Union of Australia v Registered Organisations Commissioner (No 2) [2018] FCAFC 203; 267 FCR 40 Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49; 284 FCR 24
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	77
Date of last submission/s:	26 July 2022
Date of hearing:	23 June 2022
Counsel for the Applicant:	Ms C Van Proctor
Solicitor for the Applicant:	Coors Chambers Westgarth
Counsel for the Respondent:	Mr N P De Yong SC and Mr K Raghavan
Solicitor for the Respondent:	King & Wood Mallesons

ORDERS

		VID 721 of 2019
BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	SAMSUNG ELECTRONICS AUSTRALIA PTY LTD Respondent

order made by:	MURPHY J
DATE OF ORDER:	28 JULY 2022

THE COURT DECLARES THAT:

1. Between March 2016 and October 2018 the Respondent (Samsung Australia), in trade or commerce, in connection with the promotion of the supply of the Galaxy S7, S7 Edge, A5 (2017), A7 (2017), S8, S8 Plus and Note8 phones (Galaxy phones):

   1. engaged in conduct that was misleading or deceptive or likely to mislead or deceive, in contravention of s 18(1) of the Australian Consumer Law (ACL), which is Schedule 2 to the Competition and Consumer Act 2010 (Cth);

   2. made false or misleading representations that the Galaxy phones had performance characteristics, uses or benefits, in contravention of s 29(1)(a) and (g) of the ACL; and

   3. engaged in conduct that was liable to mislead the public as to the characteristics and suitability for purpose of the Galaxy phones, in contravention of s 33 of the ACL,

by publishing or causing to be published advertisements and marketing materials set out in Annexure A to these orders, in Australia, which represented to consumers in Australia that the Galaxy phones would be suitable to be submerged in pool or sea water, when, in fact there was a material prospect that the charging port of the Galaxy phones might be damaged due to corrosion if:

4. the Galaxy phones had been submerged in such water; and

5. were charged or attempted to be charged while some such water remained in the charging port.

THE COURT ORDERS THAT:

Pecuniary penalties

2. Samsung...