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

The Australian Competition and Consumer Commission (ACCC) brought an action against Breast Check Pty Ltd (Breast Check) and Dr Alexandra Boyd (Dr Boyd) for alleged contraventions of the Australian Consumer Law (ACL) and Trade Practices Act 1974 (TPA). The ACCC alleged that Breast Check and Dr Boyd engaged in misleading conduct in relation to breast imaging services, making representations that were not supported by an adequate scientific medical basis. The Federal Court was tasked with determining whether declarations, injunctions, pecuniary penalties, and non-punitive orders should be made.

The legal issues before the Court included whether declarations and injunctions were appropriate, given the nature and seriousness of the alleged conduct. The Court also had to consider the appropriate amount of pecuniary penalties for the contraventions found, as well as whether a sealed reasons for judgment should be retained by the Court and whether costs should be ordered against the respondents. The Court considered submissions from both the ACCC and the respondents on these issues.

The Court found that declarations should be made, as they would convey the seriousness of the contraventions to the public. Injunctions were also appropriate, restraining Breast Check and Dr Boyd from making misleading representations in relation to breast imaging services unless reasonable grounds exist. The Court determined that pecuniary penalties of $75,000 for Breast Check and $25,000 for Dr Boyd were appropriate, given the nature of the conduct. The Court further decided that a sealed reasons for judgment should be retained by the Court to enable affected parties to use the findings as prima facie evidence in subsequent proceedings. The question of costs was left open for further submissions from the parties.

The Court made orders in line with the ACCC's further amended proposed minute of orders, with certain modifications to the proposed pecuniary penalties. The Court also ordered that a sealed reasons for judgment be retained on the Court file and invited the parties to submit further orders or written submissions regarding costs. The Court's decision balanced the need to deter and prevent misleading conduct with the appropriate level of relief for the contraventions found.