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

The Federal Court considered an appeal by the Australian Competition and Consumer Commission (ACCC) against a decision of the Federal Court of Australia (Full Court) that dismissed the ACCC's proceeding against Employsure Pty Ltd. The ACCC alleged that Employsure had contravened sections 18, 29(1)(b) and 29(1)(h) of the Australian Consumer Law (ACL) by running six Google advertisements that conveyed misleading or deceptive representations of government affiliation. The Full Court found that Employsure had contravened these sections, but declined to grant the ACCC's application for injunctive relief. The ACCC sought to appeal the Full Court's decision on the penalty and injunctive relief.

The primary legal issue for the Court was whether the penalty imposed by the Full Court was inadequate, and whether the Full Court should have granted an injunction to prevent Employsure from continuing to run Google advertisements. The Court was also required to consider the course of conduct principle in determining the appropriate penalty. Additionally, the Court had to determine whether the Full Court had erred in declining to grant the ACCC's application for injunctive relief.

The Court found that the Full Court had correctly identified the contravening conduct and the nature of the misleading or deceptive representations. The Court found that the misleading representations were part of a specific and successful strategy to increase revenue, undertaken by one of Australia's largest and growing providers in the employment and WHS advice sector. The Court found that the penalty of $5 million imposed by the Full Court was appropriate, taking into account the nature, extent and duration of the conduct. The Court also found that the Full Court was correct in declining to grant an injunction, as the contravening conduct was inadvertent and unlikely to recur. The Court found that the Full Court had not erred in its consideration of the course of conduct principle or in its assessment of the appropriate penalty.

The Court ordered that 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. The Court declined to grant any injunctive relief and requested the parties to file and serve written submissions 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. The Court noted that the issue of costs of both the trial and hearing on relief would then be determined on the papers and without a further oral hearing.