FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v Spreets Pty Ltd [2015] FCA 382
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
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- Case
- [2015] FCA 382
- Decision Date
CaseChat Overview and Summary
The court examined the nature of the misleading conduct, which involved misrepresentations about the price of deals, consumer guarantees, voucher redemption, and remedies. The court found that Spreets had admitted to the conduct and contraventions of the ACL as alleged by the ACCC. The ACCC and Spreets reached an agreement on the facts and the terms of the relief to be ordered by the court. The court considered various factors in determining the appropriate penalty, including the deliberateness of the contravention, the effect on the market, and the degree of cooperation with the ACCC. The court found that a penalty of $600,000 was appropriate, taking into account the totality of the contravening conduct and the need for general and specific deterrence.
In conclusion, the court ordered Spreets to pay a pecuniary penalty of $600,000 and the ACCC's costs of $25,000. The court also ordered Spreets to maintain its existing compliance practices for a period of three years. The decision underscores the importance of general and specific deterrence in setting penalties for breaches of consumer protection laws.
Orders
Orders of the court
13. Spreets pay to the Commonwealth of Australia, in respect of the contraventions of the ACL referred to in paragraphs 1 to 10 above, a pecuniary penalty in the amount of $600,000 within 28 days of the date of this order.
COSTS
14. Spreets pay the applicant’s costs of and incidental to these proceedings fixed in the amount of $25,000 within 28 days of the date of this order.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
This is a significant penalty for a contravention of s 29 of the ACL. It is appropriate to have regard to relevant principles as they apply in the circumstances of this case.Statutory consideration Section 224(2) of the ACL provides that, in determining the appropriate pecuniary penalty, the Court must have regard to all relevant matters including:·the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission;·the circumstances in which the act or omission took place; and·whether the person has previously been found by a Court in proceedings under Chapter 4 or Pt 5-2 of the ACL to have engaged in any similar conduct. Section 224(4)(b) of the ACL provides that a person is not liable to pay more than one pecuniary penalty in respect of the same conduct. The factors relevant to the assessment of a pecuniary penalty under earlier equivalent legislation to s 224 of the ACL were identified by French J in Trade Practices Commission v CSR Ltd (1991) ATPR 1141-076 at 52, 152-153 as:·the nature and extent of the contravening conduct;·the amount of loss or damage caused;·the circumstances in which the conduct took place;·the size of the contravening company;·the degree of power of the contravener, as evidenced by its market share and ease of entry into the market;·the deliberateness of the contravention and the period over which it extended;·whether the contravention arose out of the conduct of senior management of the contravener or at a lower level;·whether the contravener has a corporate culture conducive to compliance with the legislation as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; and·whether the contravener has shown a disposition to cooperate with the authorities responsible for the enforcement of the legislation in relation to the contravention. Those considerations have since been approved with the following extensions by Full Courts of this Court:·similar conduct in the past;·effect on the functioning of the market and other economic effects of the conduct;·the financial position of the contravening company; and·whether the conduct was systematic, deliberate or covert.(NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 290, 292-294 and 297; J McPhee & Son (Australia) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532 at [158] and [163]; TPG Internet Pty Ltd v Australian Competition and Consumer Commission (2012) 210 FCR 277 at [141].)Deterrence The High Court in Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 confirmed that the principal object of pecuniary penalties in the context of the consumer protection provisions in the Competition and is deterrence and that it should be taken into account in considering the appropriate amount of a penalty under s 224. As French CJ, Crennan, Bell and Keane JJ explained at [65]:General and specific deterrence must play a primary role in assessing the appropriate penalty in cases of calculated contravention of legislation where commercial profit is the driver of the contravening conduct.