Recent Cases

Australian Competition and Consumer Commission v Employsure Pty Ltd [2023] FCAFC 5 (08 February 2023) (Rares, Stewart and Abraham JJ)


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