Federal Court of Australia

Australian Competition and Consumer Commission v The Good Guys Discount Warehouses (Australia) Pty Ltd [2025] FCA 1085

ORDERS

THE COURT ORDERS THAT:

1. The Applicants have leave to file the further amended originating application dated 12 August 2025.

THE COURT DECLARES THAT:

Advertisements misleading as to the opt-in condition

2. By:

(a) publishing advertisements between 25 July 2019 and 14 August 2022 for 38 promotions that offered consumers ‘Store Credit’ if they made a qualifying purchase (Store Credit promotions); and

(b) failing to disclose, or adequately disclose, in the advertisements described in paragraph 2(a) that the Store Credit promotions were subject to a condition that consumers would only receive Store Credit if they remained opted-in to receive marketing communications from the respondent,

the Respondent, in trade or commerce, on each occasion:

(c) engaged in conduct in relation to financial services that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act); and

(d) engaged in conduct that was liable to mislead the public as to the nature and characteristics of a financial service, namely the terms on which it issued Store Credit to consumers, in contravention of s 12DF(1) of the ASIC Act.

Advertisements misleading as to the credit-expiry condition

3. By:

(a) publishing the advertisements described in paragraph 2(a) in respect of the Store Credit promotions;

(b) publishing advertisements between 5 September 2022 and 31 August 2023 for 78 promotions that offered consumers ‘StoreCash’ if they made a qualifying purchase (StoreCash promotions); and

(c) failing to disclose, or adequately disclose, in the advertisements described in paragraphs 3(a) and (b) that the Store Credit promotions and the StoreCash promotions were subject to a condition that Store Credit and StoreCash had to be used within a specified timeframe, which ranged between 7 days and 92 days,

the Respondent, in trade or commerce, on each occasion:

(d) engaged in conduct in relation to financial services that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 12DA(1) of the ASIC Act; and

(e) engaged in conduct that was liable to mislead the public as to the nature and characteristics of a financial service, namely the terms on which it issued Store Credit and StoreCash to consumers, in contravention of s 12DF(1) of the ASIC Act.

Failure to provide Store Credit within the specified time

4. By:

(a) offering, in trade or commerce, in connection with the supply of goods or services, to provide eligible consumers with Store Credit (being a rebate, gift, prize or other free item) by a specified date as part of the Store Credit promotions; and

(b) failing to provide Store Credit to approximately 21,500 consumers within the time it specified to them,

the Respondent contravened s 32(2) of the Australian Consumer Law, being Sch 2 to the Competition and Consumer Act 2010 (Cth), on each occasion it failed to provide Store Credit within the time specified.

THE COURT ALSO ORDERS THAT:

Pecuniary penalty

5. The Respondent pay the Commonwealth of Australia:

(a) an aggregate pecuniary penalty of $1,500,000 in respect of the contraventions of s 12DF(1) of the ASIC Act referred to in paragraph 2;

(b) an aggregate pecuniary penalty of $10,000,000 in respect of the contraventions of s 12DF(1) of the ASIC Act referred to in paragraph 3; and

(c) an aggregate pecuniary penalty of $2,000,000 in respect of the contraventions of s 32(2) of the Australian Consumer Law referred to in paragraph 4,

being a total amount of $13,500,000, within 30 days of the date of this order.

Consumer redress

6. Pursuant to s 12GNB of the ASIC Act, the Respondent must implement a consumer redress regime in accordance with the terms of Annexure A and Confidential Annexure B to this order (consumer redress regime).

7. Within 30 days of the date of this order, the Respondent must notify the Applicants of the number of consumers who were sent a store credit pursuant to the consumer redress regime.

8. Within 400 days of the date of this order (or such other date as the Respondent and the Applicants agree in writing), the Respondent must serve on the Applicants, on a confidential basis, a report signed by an authorised representative of the Respondent, providing the following information:

(a) the number of consumers who were sent a store credit pursuant to the consumer redress regime;

(b) the number of consumers who redeemed the store credit provided under the consumer redress regime; and

(c) the total value of the store credit provided under the consumer redress regime that has been redeemed.

9. Subject to further order, pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth), until final completion of the consumer redress regime any disclosure (by publication or otherwise) of Confidential Annexure B to this order is prohibited save for disclosure to:

(a) the Applicants and their legal representatives;

(b) the Respondent and its legal representatives;

(c) personnel of the Court; and

(d) each consumer eligible to receive a store credit pursuant to the consumer redress regime.

10. Order 9 is made on the ground that it is necessary to prevent prejudice to the proper administration of justice.

Other orders

11. The Respondent pay $200,000 in respect of the Applicants’ costs of, and incidental to, this proceeding, within 30 days of the date of this order.

12. The proceeding be otherwise dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ANNEXURE A
CONSUMER REDRESS REGIME

1. The Respondent will provide a store credit (Redress) in accordance with paragraph 2 to each consumer who:

(a) was entitled to receive Store Credit or StoreCash as a result of making a qualifying purchase in respect of a promotion the subject of this proceeding (Qualifying Purchase); and

(b) did not redeem the first such Store Credit or StoreCash which they were entitled to receive (the Initial Entitlement), in whole or in part,

(each such consumer, an Eligible Consumer).

2. Pursuant to paragraph 1:

(a) subject to para (d) below, the Redress will be of equivalent value to the Initial Entitlement;

(b) the Redress will have an expiry date of 12 months from the date it is provided by the Respondent;

(c) if an Eligible Consumer made more than one Qualifying Purchase, then subject to para (d) below, the Eligible Consumer is only entitled to Redress in respect of the Initial Entitlement; and

(d) if Store Credit or StoreCash earned in respect of a Qualifying Purchase (other than the Initial Entitlement) was issued on the same date as the Initial Entitlement (Same Date Entitlement), then the Eligible Consumer will be provided with Redress for each such Same Date Entitlement which was not redeemed in whole or in part.

3. The Redress will be provided to Eligible Consumers by the Respondent sending, within 14 days of the date of this order:

(a) a notice to Eligible Consumers, in the form set out in Part 1 of Confidential Annexure B to this order, by email to the email address (if any) held on record by the Respondent for the Eligible Consumer; or

(b) if the Respondent does not hold on record an email address for the Eligible Consumer, a notice to Eligible Consumers, in the form set out in Part 2 of Confidential Annexure B to this order, by SMS to the phone number (if any) held on record by the Respondent for the Eligible Consumer.

4. If the Respondent receives an email bounce back within 2 days of sending an email in accordance with paragraph 3(a), the Respondent will, within 10 days of receiving the email bounce back, send the Redress by way of a notice in accordance with paragraph 3(b).

CONFIDENTIAL ANNEXURE B

[Annexure redacted]

REASONS FOR JUDGMENT

O’BRYAN J:

A.    Introduction

1 This proceeding has been brought by the Australian Competition and Consumer Commission and Mr Rami Greiss (as the holder of a delegation from the Australian Securities and Investments Commission pursuant to s 102 of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act) in relation to alleged contraventions of that Act) (collectively, the applicants) against the respondent (The Good Guys) in connection with certain promotions conducted by The Good Guys offering store credit.

2 The parties have reached agreement as to the terms on which they seek the resolution of the proceeding. To that end, the parties filed:

(a) joint submissions dated 12 August 2025;

(b) a Statement of Agreed Facts and Admissions dated 12 August 2025 (Agreed Facts), setting out the facts agreed between the parties pursuant to s 191 of the Evidence Act 1995 (Cth) and the admissions made by The Good Guys; and

(c) proposed orders setting out the relief (including as to penalty) which the parties submit is appropriate and should be granted in the proceeding, recognising that the grant of such relief is in the discretion of the Court.

3 The applicants also sought leave to file and serve a further amended originating application dated 12 August 2025. There is no opposition to the grant of leave.

4 The Good Guys is an Australian consumer electronics and household appliance retailer that has, at all relevant times, carried on the business of selling consumer electronics, household appliances and other goods to consumers.

5 In the period from 25 July 2019 to 14 August 2022 (the Store Credit promotions period), The Good Guys conducted 38 promotions where it offered ‘Store Credit’ to consumers if they made a qualifying purchase from The Good Guys’ website or, for some promotions, in its physical stores and/or through its phone sales line (Store Credit promotions). Store Credit constituted credit that could be used to make a further purchase at The Good Guys. The Good Guys provided Store Credit to eligible consumers by way of email or SMS message on the date specified in the terms and conditions of the Store Credit promotion. Once received by a consumer, subject to the credit-expiry condition, Store Credit could be redeemed with The Good Guys via The Good Guys’ website, by telephone or at The Good Guys’ physical stores.

6 From 5 September 2022, the label ‘Store Credit’ was changed to ‘StoreCash’. In the period from 5 September 2022 until 31 August 2023 (the StoreCash promotions period), The Good Guys conducted 78 promotions where it offered to provide StoreCash to consumers if they made a qualifying purchase from The Good Guys’ website, in its physical stores and/or over the phone (StoreCash promotions). The Good Guys provided StoreCash to eligible consumers through a digital wallet that could be accessed on a smart device, such as a smartphone, on the date specified in the terms and conditions of the StoreCash promotion. Once credited to a consumer’s digital wallet, subject to the credit-expiry condition, StoreCash could be spent via The Good Guys’ website, by telephone or at The Good Guys’ physical stores.

7 The Good Guys admits that the Store Credit promotions and the StoreCash promotions contravened the consumer protection laws in three respects.

8 First, The Good Guys admits that the advertisements for the Store Credit promotions failed to disclose, or adequately disclose, that the offer was subject to the condition that consumers would only receive a Store Credit if they remained opted-in to receive marketing communications from The Good Guys until the credit dispatch date (referred to as the opt-in conduct), rendering the advertisements misleading. Consumers who made purchases on The Good Guys’ website were automatically opted-in to receive marketing communications from The Good Guys. However, consumers could opt out of receiving marketing communications and, if they did, they would not receive the applicable Store Credit.

9 Second, The Good Guys admits that the advertisements for the Store Credit promotions and the StoreCash promotions failed to disclose, or adequately disclose, that a condition of the Store Credit and the StoreCash was that they had to be used within a specified timeframe (the credit-expiry conduct), rendering the advertisements misleading. The Store Credit expired between 7 and 28 days after the date that the Store Credit was sent to the consumer. The StoreCash expired between 10 and 92 days after the date that it was credited to the consumer’s digital wallet.

10 Third, The Good Guys admits that, despite offering to provide eligible consumers with Store Credit by a specified date as part of each Store Credit promotion, it failed to provide Store Credit to approximately 21,500 consumers within the time specified (the credit provision conduct).

11 By their amended originating process and concise statement, the applicants allege (relevantly) that, during the Store Credit promotions period and the StoreCash promotions period (referred to collectively as the relevant promotions period), The Good Guys contravened ss 18(1), 32(2) and 34 of the Australian Consumer Law (ACL) (being Sch 2 to the Competition and Consumer Act 2010 (Cth) (CCA) or, in the alternative, the analogous provisions in the ASIC Act, being ss 12DA(1), 12DE(2A) and 12DF(1).

12 In general terms, the ACL does not apply to the supply of financial services or financial products as defined in the ASIC Act (see s 131A of the CCA), and the supply of financial services and financial products is governed by the consumer protection provisions in the ASIC Act. It is common ground that Store Credit and StoreCash are facilities through which a person makes non-cash payments and are therefore financial products within the meaning of the ASIC Act, and that, by issuing Store Credit and StoreCash, The Good Guys provided a financial service within the meaning of the ASIC Act.

13 The parties agree that the relevant consumer protection provisions in the ASIC Act (s 12DA(1) and s 12DF(1)) apply to the opt-in conduct and the credit-expiry conduct, which both concern misleading conduct relating to the supply of Store Credit and StoreCash as financial services, and that the analogous provisions in the ACL are not applicable. For the reasons explained below, I agree that the relevant consumer protection provisions in the ASIC Act are applicable to the opt-in conduct and the credit-expiry conduct and that it is not necessary to consider whether the analogous provisions in the ACL are applicable.

14 The parties also agreed that s 12DE(2A) of the ASIC Act applies to the credit provision conduct but, if that is not correct, that s 32(2) of the ACL applies. For the reasons explained below, I have concluded that s 12DE(2A) of the ASIC Act is not applicable, but that s 32(2) of the ACL is applicable.

15 The orders proposed by the parties provide for:

(a) declarations of the admitted contraventions of the ASIC Act (or the ACL) by The Good Guys;

(b) the payment by The Good Guys of an aggregate pecuniary penalty of $13,500,000 in respect of the admitted contraventions of the ASIC Act (or the ACL);

(c) the implementation by The Good Guys of a consumer redress regime pursuant to s 12GNB of the ASIC Act (consumer redress regime), and associated orders for the notification of certain matters regarding that regime to customers of The Good Guys;

(d) pursuant to s 37AF(1) and s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the suppression and/or non-publication (to persons other than the parties and their legal representatives, personnel of the Court and each consumer eligible to receive a store credit in accordance with the consumer redress regime) of the notification to be given to customers of The Good Guys pursuant to the consumer redress regime, on the ground that such an order is necessary to prevent prejudice to the proper administration of justice; and

(e) the payment by The Good Guys of the applicants’ costs in the amount of $200,000.

16 The parties’ proposed orders raised four principal questions:

(a) whether the consumer protection provisions in the ASIC Act or the ACL apply in the circumstances of this case;

(b) whether the form of declarations proposed by the parties appropriately states the admitted contraventions of the law;

(c) whether the penalties proposed by the parties are appropriate having regard to all relevant facts and circumstances; and

(d) whether an order is required under s 12GLA(1), or alternatively s 12GLB(1), of the ASIC Act to support the requirements of the consumer redress regime.

B.    Agreed facts

17 The following findings of fact are based on the Agreed Facts.

The Good Guys’ business

18 The Good Guys is an Australian consumer electronics and household appliance retailer that has, at all relevant times, carried on the business of selling consumer electronics, household appliances and other goods to consumers at a wide range of price points. The Good Guys supplies products which range in price from less than $20 to more than $1,000. Its business is conducted from 107 physical stores across Australia, online at www.thegoodguys.com.au (The Good Guys’ website) and by a telephone sales line. The Good Guys has, since late 2016, been a wholly owned subsidiary of JB Hi-Fi Limited (JB Hi-Fi). JB Hi-Fi is listed on the Australian Securities Exchange.

Description of the promotions

19 During the Store Credit promotions period, The Good Guys conducted 38 Store Credit promotions where it offered Store Credit to consumers if they made a qualifying purchase from The Good Guys’ website or, for some promotions, in its physical stores and/or through its phone sales line. Of these promotions:

(a) 14 were ‘national promotions’ where the offer of Store Credit was made to the public at-large; and

(b) 24 were ‘by invitation promotions’ where the offer of Store Credit was made by The Good Guys to specific consumers in The Good Guys’ customer database.

20 During the StoreCash promotions period, The Good Guys conducted 78 StoreCash promotions where it offered to provide StoreCash to consumers if they made a qualifying purchase online, in its physical stores and/or over the phone. Of these promotions:

(a) 60 were ‘national promotions’ where the offer of StoreCash was open to the public at-large; and

(b) 18 were ‘by invitation promotions’ where the offer of StoreCash was made by The Good Guys to specific consumers in The Good Guys’ customer database.

21 The duration of each promotion (the period of time in which a purchase would qualify a consumer to receive Store Credit or StoreCash) varied. The Store Credit promotions ran for a period between 1 to 41 days (on average for just over one week) and the StoreCash promotions ran for a period between 2 to 50 days (on average for three weeks).

22 Depending on the promotion, a qualifying purchase involved a purchase of certain brands or types of goods, and/or a minimum spend on goods, and/or the purchase of goods using an eligible payment method. The amount of Store Credit or StoreCash offered to an eligible consumer varied depending on the promotion and qualifying purchase made.

23 The Good Guys provided Store Credit to eligible consumers by way of email or SMS message on the date specified in the terms and conditions of that Store Credit promotion (the credit dispatch date). Once received by a consumer, and subject to the Store Credit expiry date, Store Credit could be redeemed with The Good Guys via The Good Guys’ website, by telephone or at The Good Guys’ physical stores.

24 The Good Guys provided StoreCash to eligible consumers through a digital wallet that could be accessed on a smart device, such as a smartphone, on the date specified in the terms and conditions of that StoreCash promotion (the credit dispatch date). Once credited to a consumer’s digital wallet, and subject to the StoreCash expiry date, StoreCash could be spent via The Good Guys’ website, by telephone or at The Good Guys’ physical stores.

Relevant conditions of the promotions

25 Each promotion was subject to various terms and conditions, which were published on a standalone page on The Good Guys’ website. Relevantly, the terms and conditions for all but one of the Store Credit promotions contained the opt-in condition and the credit-expiry condition, both of which are described below. The terms and conditions for all StoreCash promotions contained the credit-expiry condition.

The opt-in condition

26 Each Store Credit promotion was subject to a condition that consumers would only receive a Store Credit if they remained opted-in to receive marketing communications from The Good Guys until the credit dispatch date (the opt-in condition).

27 As noted above, Store Credit was sent to eligible consumers by email and/or SMS. In or around November 2020, The Good Guys became concerned that Store Credits sent to consumers by email or SMS may breach the Spam Act 2003 (Cth). From around that time, The Good Guys changed its processes for ‘national’ Store Credit promotions so that Store Credits were only sent to consumers who were opted-in to receive marketing communications. This aligned with The Good Guys’ existing processes for ‘by invitation’ Store Credit promotions. The process was reflected in the opt-in condition.

28 By way of further background, consumers who received offers for ‘by invitation’ Store Credit promotions were already opted-in to receive marketing material, as the offers were only sent to consumers in The Good Guys’ marketing database. In contrast, ‘national’ Store Credit promotions related to online purchases only, and any consumer who made an online purchase would be automatically opted-in to receive marketing communications from The Good Guys. However, consumers who made online purchases could opt out of receiving marketing communications from The Good Guys by following the ‘unsubscribe’ instruction in the relevant communication or via the ‘preference centre’ on The Good Guys’ website. Consumers would not satisfy the opt-in condition, and therefore not receive Store Credit, if they opted-out of receiving marketing communications from The Good Guys prior to the date on which they were due to receive Store Credit.

The credit-expiry condition

29 The terms and conditions for the promotions also included a condition that Store Credit or StoreCash had to be used within a specified timeframe (the credit-expiry condition). The period for which Store Credit and StoreCash was available to use varied by promotion. The Store Credit provided as part of the Store Credit promotions expired between 7 and 28 days after the date that the Store Credit was sent to the consumer. For the majority of the Store Credit promotions, the expiry period was 7 days. The StoreCash provided as part of the StoreCash promotions expired between 10 and 92 days after the date that it was credited to the consumer’s digital wallet. The majority of the StoreCash promotions had an expiry period of 10 days.

30 Most of the terms and conditions for Store Credit promotions included a “Frequently asked questions” section at the end which referred to the credit-expiry condition and typically read as follows (or words to a similar effect):

How long do I have to use my store credit?

The store credit will expire within seven (7) days of store credit email dispatch.

31 For the StoreCash promotions, the terms and conditions in place up to September 2023 provided:

Unless otherwise stated in a StoreCash Offer, all StoreCash that you have earned expires ten (10) calendar days after the date on which it is credited to your Digital Wallet.

The advertisements featuring the promotions

32 The Good Guys published and caused to be displayed advertisements featuring the promotions in various combinations of the following media:

(a) on The Good Guys’ website (including on the relevant promotion information page);

(b) in email advertisements sent to consumers who had subscribed to receive marketing material from The Good Guys;

(c) on social media;

(d) in SMS messages sent to consumers who had subscribed to receive marketing material from The Good Guys;

(e) in electronic catalogues (available on The Good Guys’ website or on third party websites);

(f) on third party websites;

(g) in print media, including local and national newspaper advertisements, and catalogues, physical posters and banners displayed in-store; and

(h) (for one promotion) in a national television commercial.

33 Each advertisement featuring the promotion offered consumers Store Credit or StoreCash if they made a qualifying purchase with The Good Guys and contained one or more of the following features:

(a) words to the effect of “Bonus”, “Online Offer”, or “Online Bonus Buy” displayed, typically at the top of the advertisement in large font;

(b) words to the effect of “Earn StoreCash”, “Get … StoreCash”, “Start earning StoreCash”, “Double your StoreCash”, “Earn to Pay Less” or “Earn StoreCash to Pay Less” displayed, typically at the top of the advertisement in large font; and/or

(c) the numerical value of the Store Credit or the StoreCash offered in the relevant promotion displayed.

34 The Good Guys was unable to identify precisely how many advertisements featuring the promotions were published and how many times each advertisement was displayed to consumers in the relevant promotions period. However, it identified at least 1,446 advertisements that were published during that period.

35 The advertisements featuring the promotions typically contained statements, either in the main body of the advertisements, the footer at the base of the advertisement or in both the main body and the footer, adverting to the terms and conditions that applied to the promotions, namely:

(a) a URL or hyperlink to the terms and conditions for the relevant promotion (for example, the statement “For full details and terms and conditions, visit https://www.thegoodguys.com.au/promotional-terms-and-conditions”);

(b) a URL or hyperlink to a page on The Good Guys’ website which contained a hyperlink to the terms and conditions (in some instances this was to the Store Credit or StoreCash home page, to a specific promotion webpage or to The Good Guys’ home webpage);

(c) a QR code, which directed consumers to the Store Credit or StoreCash information page, to The Good Guys’ home webpage or to a specific promotion webpage;

(d) a symbol (for example “<”) directing consumers’ attention to an explanatory note, either in the body of the advertisement or in a footer, containing words to the effect of “T&Cs apply”, “Meet qualifying conditions” or “Exclusions apply”;

(e) statements containing words to the effect of “Learn more” or “Click for details” which were either hyperlinked or displayed next to a QR code as described in sub-paragraph (c); and/or

(f) a symbol (for example “<”) directing consumers’ attention to an explanatory note containing words to the effect that Store Credit promotions or StoreCash promotions were “time limited” or “expiry dates may vary by promotion”, or an explanatory note stating “Just keep in mind that StoreCash expires, so make sure you use it before you lose it!”.

36 Further, the advertisements featuring the promotions typically contained disclosures of what were viewed by The Good Guys as key pre-conditions required to be satisfied by any consumer in order to be eligible to receive Store Credit or StoreCash under the promotions. The extent of those disclosures varied between advertisements and media and included reference to one or more of the following:

(a) the day by which, or dates within which, a qualifying purchase must be made;

(b) whether online, in-store or phone purchases were eligible;

(c) whether the promotion was by invitation only;

(d) whether a minimum spend for a qualifying purchase was required;

(e) the date by which the qualifying purchase must be collected or delivered; and/or

(f) the fact that exclusions applied.

37 At least four advertisements featuring the promotions that had explanatory notes contained no statement as to the terms and conditions that applied to the promotion being advertised.

38 Nine advertisements featuring the promotions contained statements in small print which referred to the opt-in condition, for example “To receive the Bonus Store Credit eligible customers must be opted-in to receive marketing material in the preference centre”. However, these nine advertisements did not disclose the credit-expiry condition. Save for these advertisements, the advertisements featuring the promotions did not disclose the opt-in condition or the credit-expiry condition, which were included in the terms and conditions for the promotions.

Redemption of Store Credit and StoreCash

39 The email or SMS through which The Good Guys dispatched Store Credits:

(a) contained a code that could be used to redeem the Store Credit to purchase products from The Good Guys’ website or at physical stores; and

(b) stated the expiry date of the Store Credit as follows:

(i) emails included the start date and end date that the Store Credit was available to be used by the consumer; and

(ii) SMS messages contained the expiry date of the Store Credit at the end of the message.

40 Once StoreCash was credited to an eligible consumer’s digital wallet, it appeared in the digital wallet as a barcode with the expiry date displayed and a tab to access a hyperlink to the StoreCash terms and conditions displayed next to the amount. The barcode could be used to purchase products from The Good Guys’ online, telephone and physical stores.

41 Throughout the StoreCash promotions period, consumers could enable notifications in their digital wallet to receive notifications when StoreCash was credited to their digital wallet, however whether such notifications were displayed was dependent on consumers’ notification and automatic update settings as well as the operating system of the relevant device. Some consumers may also have received an email notification from The Good Guys when StoreCash was credited to their digital wallet.

Value of Store Credit and StoreCash provided and used

42 In relation to the Store Credit promotions:

(a) approximately 109,000 individual consumers qualified to receive a Store Credit as part of a Store Credit promotion;

(b) approximately 105,000 individual Store Credit vouchers were provided to consumers as part of a Store Credit promotion on or before the relevant credit dispatch date or, in respect of the “Tax Time Bonus Click & Collect” promotion which ran from 1 June 2022 to 30 June 2022 (Tax Time promotion), within four days of the credit dispatch date;

(c) the dollar value of Store Credit provided to each consumer ranged between $10 and $120;

(d) Store Credit with a total dollar value of approximately $5,700,000 was provided by The Good Guys to eligible consumers on or before the credit dispatch date for the relevant Store Credit promotion or, in respect of 5,196 eligible consumers, within four days of the credit dispatch date for the Tax Time promotion; and

(e) of that Store Credit provided:

(i) Store Credit with a total dollar value of approximately $1,600,000 was redeemed by consumers before its expiry; and

(ii) Store Credit with a total dollar value of approximately $4,100,000 was not used before its expiry.

43 In relation to the StoreCash promotions:

(a) approximately 173,000 individual consumers were provided with StoreCash as part of a StoreCash promotion;

(b) the value of StoreCash provided to each consumer ranged between $10 and $1,000;

(c) approximately $16,200,000 of StoreCash was provided by The Good Guys to eligible consumers;

(d) the total dollar value of StoreCash that was redeemed by consumers before its expiry was approximately $5,900,000; and

(e) the total dollar value of StoreCash that was provided by The Good Guys but not used before its expiry was approximately $10,300,000.

Failure to provide Store Credit

44 The Good Guys did not provide Store Credit by the relevant credit dispatch date to approximately 21,500 consumers eligible to receive Store Credit as part of a Store Credit promotion. The Good Guys sent 5,196 affected consumers their Store Credit four days after the credit dispatch date. The Good Guys provided replacement StoreCash to the remainder of the affected consumers in March 2023.

C.    Admitted contraventions

45 In respect of the opt-in conduct, The Good Guys admits that, by publishing the advertisements for the Store Credit promotions during the Store Credit promotions period and failing to disclose, or adequately disclose, in the advertisements that the Store Credit promotion was subject to the opt-in condition, it:

(a) in trade or commerce, engaged in conduct in relation to financial services that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 12DA(1) of the ASIC Act; and

(b) in trade or commerce, engaged in conduct that was liable to mislead the public as to the nature and characteristics of a financial service, namely the terms on which it issued Store Credit to consumers, in contravention of s 12DF(1) of the ASIC Act,

on each occasion that an advertisement was viewed by a consumer.

46 In respect of the credit-expiry conduct, The Good Guys admits that, by publishing the advertisements for the Store Credit promotions during the Store Credit promotions period and for the StoreCash promotions during the StoreCash promotions period, and failing to disclose, or adequately disclose, in the advertisements that the promotions were subject to the credit-expiry condition, it:

(a) in trade or commerce, engaged in conduct in relation to financial services that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 12DA(1) of the ASIC Act; and

(b) engaged in conduct that was liable to mislead the public as to the nature and characteristics of a financial service, namely the terms on which it issued Store Credit and StoreCash to consumers, in contravention of s 12DF(1) of the ASIC Act,

on each occasion that an advertisement was viewed by a consumer.

47 In respect of the credit provision conduct, The Good Guys admits that by:

(a) offering, in trade or commerce, in connection with the promotion by any means of the supply of financial services, to provide eligible consumers with Store Credit (being a rebate, gift, prize or other free item) by a specified date (being the credit dispatch date) as part of each Store Credit promotion; and

(b) failing to provide Store Credit to approximately 21,500 consumers within the time specified,

it contravened s 12DE(2A) of the ASIC Act on each occasion it failed to provide the Store Credit within the time specified.

48 The parties accept that to the extent s 12DE(2A) of the ASIC Act does not apply, the equivalent ACL prohibition, s 32(2) will apply. As noted earlier, and for the reasons discussed below, I consider that s 12DE(2A) of the ASIC Act is not applicable to the circumstances of this case, but that s 32(2) of the ACL is applicable.

D.    The applicable statutory prohibitions

Section 131A of the CCA – financial services and financial products

49 Part XI of the CCA applies the ACL as a law of the Commonwealth. Relevantly, s 131A(1) (within Pt XI) provides that (subject to exceptions which are not relevant for present purposes) the ACL does not apply “to the supply, or possible supply, of services that are financial services, or of financial products”. Section 131A(2) of the CCA further states that, without limiting subs (1), Pt 2-1 of the ACL (which contains the s 18 prohibition on misleading or deceptive conduct) and s 34 of the ACL do “not apply to conduct engaged in in relation to financial services”.

50 Section 130A of the CCA provides that an expression used in Pt XI has the same meaning as in the ACL. The expressions ‘financial product’ and ‘financial services’ are both defined in s 2 of the ACL as follows:

financial product has the meaning given by s 12BAA of the Australian Securities and Investments Commission Act 2001

financial service has the meaning given by s 12BAB of the Australian Securities and Investments Commission Act 2001

51 Section 12BAA(1)(c) of the ASIC Act provides that (subject to exceptions which are not presently relevant) a ‘financial product’ is a facility through which, or through the acquisition of which, a person makes non-cash payments. Section 12BAA(6) of the ASIC Act provides that “a person makes non-cash payments if they make payments, or cause payments to be made, otherwise than by the physical delivery of Australian currency in the form of notes and/or coins”. The parties submitted, and I accept, that both the Store Credit and the StoreCash are ‘financial products’ within the meaning of s 12BAA of the ASIC Act.

52 Section 12BAB(1)(b) of the ASIC Act provides that a person provides a ‘financial service’ if they deal in a financial product. Section 12BAB(7)(b) states that a person deals in a financial product if they issue a financial product. The parties submitted, and I accept, that by issuing Store Credit and StoreCash to consumers, The Good Guys provided a ‘financial service’ within the meaning of s 12BAB of the ASIC Act.

53 It follows that the ACL does not apply to the supply of the Store Credit and StoreCash, but the ASIC Act does apply.

Misleading or deceptive conduct

54 At all relevant times, s 12DA(1) of the ASIC Act provided:

A person must not, in trade or commerce, engage in conduct in relation to financial services that is misleading or deceptive or is likely to mislead or deceive.

55 Section 12DA(1) is an analogue of s 18 of the ACL. The central question arising under s 12DA(1) is whether the impugned conduct, viewed as a whole, has a sufficient tendency to lead a person exposed to the conduct into error (that is, to form an erroneous assumption or conclusion about some fact or matter): see Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198 (Gibbs CJ); Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 200 (Deane and Fitzgerald JJ); Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 at [98] (the Court); Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 (ACCC v TPG) at [39] (French CJ, Crennan, Bell and Keane JJ).

56 As noted above, The Good Guys admits that the opt-in conduct and the credit-expiry conduct constituted a contravention of s 12DA(1) of the ASIC Act. I accept that the impugned conduct relates to the supply of Store Credit and StoreCash, which supply is a financial service, and accordingly s 12DA(1) is applicable to that conduct.

Conduct liable to mislead the public

57 At all relevant times, s 12DF(1) of the ASIC Act provided:

A person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any financial services.

58 Section 12DF(1) is an analogue of s 34 of the ACL. The term ‘liable to mislead’ is narrower than ‘likely to mislead’. It must be established that there is an actual probability of the public being misled: see Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 634; 317 ALR 73 at [44] (Allsop CJ). The words ‘the public’ do not mean the world at large or the whole community. A communication will be directed to the public within the meaning of s 12DF(1) if the communication is general (that is, not individual or specific) and is directed to all people within a segment of the community at large: Australian Competition and Consumer Commission v Google LLC (No 2) [2021] FCA 367; 391 ALR 346 at [127] (Thawley J), citing Trade Practices Commission v J & R Enterprises (1991) 99 ALR 325 at 347-8 (O’Loughlin J).

59 Again, as noted above, The Good Guys admits that the opt-in conduct and the credit-expiry conduct each constituted a contravention of s 12DF(1) of the ASIC Act. I accept that the impugned conduct relates to the nature and characteristics of the supply of Store Credit and StoreCash, which supply is a financial service, and accordingly s 12DF(1) is applicable to that conduct.

Offering rebates, gifts, prizes, or other free items

60 At all relevant times, s 12DE(2A) of the ASIC Act provided:

(2A)    A person contravenes this subsection if:

(a)    the person offers any rebate, gift, prize or other free item; and

(b)    the person offers the rebate, gift, prize or other free item in trade or commerce, in connection with:

(i)    the supply or possible supply of financial services; or

(ii)    the promotion by any means of the supply or use of financial services; or

(iii)    the supply or possible supply of a financial product that consists of, or includes, an interest in land; or

(iv)    the promotion by any means of a financial product that consists of, or includes, an interest in land; and

(c)    the person fails, within the time specified in the offer or (if no such time is specified) within a reasonable time after making the offer, to provide the rebate, gift, prize or other free item in accordance with the offer.

61 The equivalent provision to s 12DE(2A) of the ASIC Act in the ACL is s 32(2) which, at all relevant times, provided:

If a person offers any rebate, gift, prize or other free item in connection with:

(a) the supply or possible supply of goods or services; or

(b) the promotion by any means of the supply or use of goods or services; or

(c) the sale or grant, or the possible sale or grant, of an interest in land; or

(d) the promotion by any means of the sale or grant of an interest in land;

the person must, within the time specified in the offer or (if no such time is specified) within a reasonable time after making the offer, provide the rebate, gift, prize or other free item in accordance with the offer.

62 The parties submitted, and I accept, that Store Credit answers the description of a rebate, gift, prize or other free item. In respect of s 12DE(2A) of the ASIC Act, the parties submitted that each offer made by The Good Guys to provide Store Credit was made in connection with the supply (or possible supply) of financial services, or the promotion of the supply or use of financial services, being the provision of Store Credit. I do not accept that submission. The section requires that the rebate, gift, prize or other free item is offered in connection with (relevantly) the supply, or promotion of the supply or use, of financial services. The natural reading of s 12DE(2A) (and in my view the only available reading) is that the rebate, gift, prize or other free item referred to in the statutory provision is distinct from (relevantly) the financial services referred to in the statutory provision. In my view, s 12DE(2A) is not applicable to the Store Credit offered by The Good Guys, because the Store Credit was not offered in connection with the supply of financial services or the promotion of the supply or use of financial services.

63 I am, however, satisfied that s 32(2) of the ACL applies to the Store Credit offered by The Good Guys, because the Store Credit was offered in connection with the supply or possible supply of goods or the promotion by any means of the supply or use of goods. Section 131A of the CCA does not preclude the application of s 32(2) of the ACL in the present circumstances. As discussed above, s 131A(1) of the CCA provides that the ACL does not apply “to the supply, or possible supply, of services that are financial services, or of financial products”. The relevant supply to which s 32(2) of the ACL is directed is the supply of goods or services in connection with which the rebate is offered. In the present case, the relevant supply is not the supply of financial services or financial products.

64 As noted earlier, The Good Guys admits in the alternative that the credit provision conduct constituted a contravention of s 32(2) of the ACL. I am satisfied that s 32(2) applied and was contravened on each occasion that The Good Guys failed to provide the Store Credit within the time specified.

E.    Declaratory relief

65 In respect of the contraventions of s 12DA(1) and s 12DF(1) of the ASIC Act, ASIC has applied for a declaration in respect of each contravention under s 12GBA(1) of the ASIC Act. At all relevant times, s 12GBA(3) stipulated that the Court must make the declaration if it is satisfied that the person has contravened the provision. As I am satisfied that The Good Guys has contravened those provisions in the manner admitted by The Good Guys, declarations will be made to that effect.

66 In respect of the contraventions of s 32(2) of the ACL, the Court has a broad discretionary power to make declarations of right under s 21 of the FCA Act. As observed by the Full Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at [90], the fact that the parties have agreed that a declaration of contravention should be made does not relieve the Court of the obligation to satisfy itself that the making of the declaration is appropriate. However, the Full Court also stated (at [93]):

Declarations relating to contraventions of legislative provisions are likely to be appropriate where they serve to record the Court’s disapproval of the contravening conduct, vindicate the regulator’s claim that the respondent contravened the provisions, assist the regulator to carry out its duties, and deter other persons from contravening the provisions: Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730; (2007) ATPR 42-140 at [6], and the cases there cited; Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 at [95].

67 I am satisfied that the ACCC, as the relevant regulator in respect of the ACL, has a real interest in seeking declaratory relief in respect of the admitted contraventions of s 32(2). Declaratory relief records the Court’s disapproval of the contravening conduct, vindicates the ACCC’s claim that The Good Guys contravened the ACL and deters other entities from contravening the ACL. The Good Guys has an interest in opposing the relief, notwithstanding its admissions and agreement: IMF (Australia) Ltd v Sons of Gwalia Ltd [2004] FCA 1390; 211 ALR 231 at [47] (French J); Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378 at [30] (Greenwood, Logan and Yates JJ).

68 The Court is not bound by the form of the declarations proposed by the parties and must determine for itself whether the form is appropriate. As stated by the High Court in Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 at [89], a declaration that a person has contravened a statutory prohibition should indicate the gist of the findings that identify the contravention. Declarations must be “informative as to the basis on which the Court declares that a contravention has occurred” and “should contain appropriate and adequate particulars of how and why the impugned conduct is a contravention of the Act”: Australian Competition and Consumer Commission v EnergyAustralia Pty Ltd [2015] FCA 274; ATPR 42-491 at [83] (Gordon J). The declaration should accurately reflect the contravening conduct in a concise way: Australian Competition and Consumer Commission v Danoz Direct Pty Ltd [2003] FCA 881; 60 IPR 296 at [260] (Dowsett J).

69 I consider that the form of declarations proposed by the parties in respect of the contravening conduct is appropriate, save that the declaration in respect of the credit provision conduct should be amended to refer to s 32(2) of the ACL rather than s 12DE(2A) of the ASIC Act.

F.    Pecuniary penalties

Jointly proposed penalty

70 The parties proposed an aggregate pecuniary penalty of $13,500,000 in respect of The Good Guys’ admitted contravening conduct.

71 As the majority observed in Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 (FWBII) at [46] (French CJ, Kiefel, Bell, Nettle and Gordon JJ):

[T]here is an important public policy involved in promoting predictability of outcome in civil penalty proceedings and that the practice of receiving and, if appropriate, accepting agreed penalty submissions increases the predictability of outcome for regulators and wrongdoers. As was recognised in Allied Mills and authoritatively determined in NW Frozen Foods, such predictability of outcome encourages corporations to acknowledge contraventions, which, in turn, assists in avoiding lengthy and complex litigation and thus tends to free the courts to deal with other matters and to free investigating officers to turn to other areas of investigation that await their attention.

72 Their Honours went on to say at [58] (emphasis in original):

… Subject to the court being sufficiently persuaded of the accuracy of the parties’ agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and … highly desirable in practice for the court to accept the parties’ proposal and therefore impose the proposed penalty.

73 The Court may adopt an agreed penalty if it considers it an appropriate amount, even if it “might otherwise have been disposed to select some other figure”: FWBII at [47] quoting NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 291 (Burchett and Kiefel JJ). However, as noted by the Full Court in Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 284 FCR 24 (Volkswagen) at [125], the Court must be persuaded that the penalty proposed by the parties is appropriate and the agreement of the parties cannot bind the Court to impose a penalty which it does not consider to be appropriate. The Full Court further observed that (at [129]):

… in considering whether the proposed agreed penalty is an appropriate penalty, the Court should generally recognise that the agreed penalty is most likely the result of compromise and pragmatism on the part of the regulator, and to reflect, amongst other things, the regulator’s considered estimation of the penalty necessary to achieve deterrence and the risks and expense of the litigation had it not been settled: Fair Work at [109].  The fact that the agreed penalty is likely to be the product of compromise and pragmatism also informs the Court’s task when faced with a proposed agreed penalty.  The regulator’s submissions, or joint submissions, must be assessed on their merits, and the Court must be wary of the possibility that the agreed penalty may be the product of the regulator having been too pragmatic in reaching the settlement: Fair Work at [110].

Applicable statutory provisions

74 The relevant provisions governing the imposition of penalties for contraventions of s 12DF(1) of the ASIC Act which occurred on and after 13 March 2019 are as follows:

12GBA Declaration of contravention of civil penalty provision

Application for declaration of contravention

(1)    ASIC may apply to a Court for a declaration that a person has contravened a civil penalty provision.

(2)    ASIC must make the application within 6 years of the alleged contravention.

Declaration of contravention

(3)    The Court must make the declaration if it is satisfied that the person has contravened the provision.

…

Meaning of civil penalty provision

(6)    The following provisions are civil penalty provisions:

…

(b)    a provision of Subdivision D (other than section 12DA);

…

12GBB  Pecuniary penalty orders

Application for order

(1)    ASIC may apply to a Court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty.

(2)    ASIC must make the application within 6 years of the alleged contravention.

Court may order person to pay pecuniary penalty

(3)    If a declaration has been made under section 12GBA that the person has contravened the provision, the Court may order the person to pay to the Commonwealth a pecuniary penalty that the Court considers is appropriate (but not more than the amount specified in section 12GBC).

(4)    An order under subsection (3) is a pecuniary penalty order.

Determining pecuniary penalty

(5)    In determining the pecuniary penalty, the Court must take into account all relevant matters, including:

(a)    the nature and extent of the contravention; and

(b)    the nature and extent of any loss or damage suffered because of the contravention; and

(c)    the circumstances in which the contravention took place; and

(d)    whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct;

…

12GBC Maximum pecuniary penalty

The pecuniary penalty must not be more than the pecuniary penalty applicable to the contravention of the civil penalty provision.

12GBCA  Pecuniary penalty applicable

…

Pecuniary penalty applicable to the contravention of a civil penalty provision—by a body corporate

(2)    The pecuniary penalty applicable to the contravention of a civil penalty provision by a body corporate is the greatest of:

(a)    50,000 penalty units; and

(b)    if the Court can determine the benefit derived and detriment avoided because of the contravention—that amount multiplied by 3; and

(c)    either:

(i)    10% of the annual turnover of the body corporate for the 12‑month period ending at the end of the month in which the body corporate contravened, or began to contravene, the civil penalty provision; or

(ii)    if the amount worked out under subparagraph (i) is greater than an amount equal to 2.5 million penalty units—2.5 million penalty units.

…

12GBCE Meaning of benefit derived and detriment avoided because of a contravention of a civil penalty provision

The benefit derived and detriment avoided because of a contravention of a civil penalty provision is the sum of:

(a)    the total value of all benefits obtained by one or more persons that are reasonably attributable to the contravention; and

(b)    the total value of all detriments avoided by one or more persons that are reasonably attributable to the contravention.

75 The Commonwealth penalty unit, and therefore the maximum penalty under s 12GBCA(2)(a) of the ASIC Act (for each contravening act), was:

(a) in the period from 1 July 2017 to 30 June 2020 inclusive, $220 (with the maximum penalty being $11,000,000);

(b) in the period from 1 July 2020 to 31 December 2022 inclusive, $222 (with the maximum penalty being $11,100,000);

(c) in the period from 1 January 2023 to 1 July 2023 inclusive, $275 (with the maximum penalty being $13,750,000); and

(d) in the period from 1 July 2023 to 6 November 2024 inclusive, $313 (with the maximum penalty being $15,650,000).

76 The relevant provisions governing the imposition of pecuniary penalties for contraventions of s 32(2) of the ACL are as follows:

224 Pecuniary penalties

(1) If a court is satisfied that a person:

(a)    has contravened any of the following provisions:

…

(iii)    a provision of Part 3-1 (which is about unfair practices);

…

…

the court may order the person to pay to the Commonwealth, State or Territory, as the case may be, such pecuniary penalty, in respect of each act or omission by the person to which this section applies, as the court determines to be appropriate.

(2)    In determining the appropriate pecuniary penalty, the court must have regard to all relevant matters including:

(a)    the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; and

(b)    the circumstances in which the act or omission took place; and

(c)    whether the person has previously been found by a court in proceedings under Chapter 4 or this Part to have engaged in any similar conduct.

77 Section 224(3) of the ACL stipulates the maximum penalty to be imposed “for each act or omission to which the section applies”. In relation to a contravention of s 32(2), s 224(3) and (3A) stipulate that the maximum penalty for a body corporate is the greater of the following amounts:

(a) $50,000,000;

(b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the act or omission—3 times the value of that benefit;

(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the act or omission.

Applicable principles

78 The determination of an appropriate penalty for contravening conduct involves a discretionary judgment. The principles applicable to the exercise of the discretion have been stated in many cases. The following is a summary of those principles.

79 First, the Court may impose a penalty in respect of each contravention, subject to the maximum penalty which is stated to apply to such contravention.

80 Second, the penalty to be imposed is a penalty that the Court considers appropriate.

81 Third, s 12GBB(5) of the ASIC Act requires the Court, in determining the appropriate penalty, to take into account four specific matters and all other relevant matters. The four specific matters are: (i) the nature and extent of the contravention; (ii) the nature and extent of any loss or damage suffered because of the contravention; (iii) the circumstances in which the contravention took place; and (iv) whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct. Section 224(2) of the ACL is in materially the same form.

82 As to ‘all other relevant matters’, in Trade Practices Commission v CSR Ltd [1990] FCA 762; ATPR 41-076 (CSR), in the context of a contravention of provisions of Pt IV of the Trade Practices Act 1974 (Cth), French J listed a number of other matters potentially relevant to the assessment of penalty under s 76 of that Act. Those matters have become known as the ‘French factors’ and have been referred to on many occasions in the assessment of civil penalties including under the ASIC Act: see Australian Securities and Investments Commission v GE Capital Finance Australia [2014] FCA 701 at [70]; Australian Securities and Investments Commission v Adler [2002] NSWSC 483; 42 ACSR 80 at [125]-[126]. The other matters, which are particularly relevant in the context of contraventions of the consumer protection laws, are:

(a) the size and financial position of the contravening company;

(b) the deliberateness of the contravention and the period over which it extended;

(c) whether the contravention arose out of the conduct of senior management or at a lower level;

(d) whether the company has a corporate culture conducive to compliance with the Act as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention;

(e) whether the company has shown a disposition to cooperate with the authorities responsible for the enforcement of the Act in relation to the contravention.

83 In Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 (Pattinson), the plurality observed in respect of the French factors (at [19], citations omitted):

It may readily be seen that this list of factors includes matters pertaining both to the character of the contravening conduct … and to the character of the contravenor … . It is important, however, not to regard the list of possible relevant considerations as a “rigid catalogue of matters for attention” as if it were a legal checklist. The court’s task remains to determine what is an “appropriate” penalty in the circumstances of the particular case.

84 Fourth, in considering the sufficiency of a proposed civil penalty, regard must ordinarily be had to the maximum penalty for the reasons stated (in a criminal sentencing context) in Markarian v The Queen (2005) 228 CLR 357 at [31]. However, as stated by the Full Federal Court in Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 (Reckitt Benckiser) at [156] (Jagot, Yates and Bromwich JJ), care must be taken to ensure that the maximum penalty is not applied mechanically, instead of it being treated as one of a number of relevant factors, albeit an important one. Further, where the theoretical maximum penalty is in the billions or trillions of dollars, the overall maximum penalty is not likely to be a meaningful factor in the assessment of penalty. In such circumstances, the appropriate range is better assessed by reference to other relevant penalty factors: Reckitt Benckiser at [157] (Jagot, Yates and Bromwich JJ).

85 Fifth, in determining the appropriate penalty for a multiplicity of civil penalty contraventions, the Court may have regard to two common law principles that originate in criminal sentencing: the ‘course of conduct’ principle and the ‘totality’ principle: Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243 (Yazaki Corporation) at [226]. Under the ‘course of conduct’ principle, the Court considers whether the contravening acts or omissions arise out of the same course of conduct or the one transaction, to determine whether it is appropriate that a ‘concurrent’ or single penalty should be imposed for the contraventions: Yazaki Corporation at [234]. The principle guards against the risk that the respondent is punished twice in respect of multiple contravening acts or omissions that should be evaluated, for the purposes of assessing an appropriate penalty, as a lesser number of acts of wrongdoing: Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1 at [39] (Middleton and Gordon JJ). The ‘totality’ principle operates as a ‘final check’ to ensure that the penalties to be imposed on a wrongdoer, considered as a whole, are just and appropriate and that the total penalty for related offences does not exceed what is proper for the entire contravening conduct in question: Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375 at 40,169; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 at 53; Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 at [132].

86 Sixth, the principal object of imposing pecuniary penalties in civil proceedings is deterrence, both to deter repetition of the contravening conduct by the contravener (specific deterrence) and to deter others who might be tempted to engage in similar contraventions (general deterrence): ACCC v TPG at [65] (French CJ, Crennan, Bell and Keane JJ); FWBII at [55] (French CJ, Kiefel, Bell, Nettle and Gordon JJ) and at [110] (Keane J). In FWBII, the plurality (at [55]) stated that the purpose of civil penalties “is primarily if not wholly protective in promoting the public interest in compliance”, endorsing the view of French J in CSR at [40]:

The principal, and I think probably the only, object of the penalties … is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act.

87 The penalty should therefore be fixed with a view to ensuring that the amount is not such as to be regarded by the contravener or others as an acceptable cost of doing business: ACCC v TPG at [66] (French CJ, Crennan, Bell and Keane JJ) citing Singtel Optus v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249 at [62]-[63] (Keane CJ, Finn and Gilmour JJ).

Relevant considerations

Nature, extent and circumstances of the contraventions

88 There are features of the three categories of contravening conduct that are similar. In particular, all of the three categories of contravening conduct concerned promotions by which The Good Guys offered to provide to consumers a credit upon making a qualifying purchase from The Good Guys. Further, the effect of all of the categories of contravening conduct was to prevent an eligible consumer receiving the credit or, in a practical sense, from being able to redeem the credit.

89 However, there are also features of each of the categories of contravening conduct that differ, as described below.

90 The opt-in conduct extended over a period of more than three years, from 25 July 2019 to 14 August 2022. The opt-in conduct involved The Good Guys’ failure to disclose, or adequately disclose, in the advertisements featuring the Store Credit promotions that the receipt of the Store Credit was subject to the opt-in condition. While the opt-in condition was disclosed in the terms and conditions for the promotions, which were published on a stand-alone page on The Good Guys’ website, The Good Guys accepts that this was insufficient to alert eligible consumers to the condition. It can be accepted that The Good Guys did not intend to mislead consumers about the existence or nature of the opt-in condition. The opt-in condition became a condition of the Store Credit promotion because the method of providing the Store Credit was by email or SMS and The Good Guys believed that the Spam Act 2003 (Cth) prevented it from sending an email or SMS to an eligible customer who had opted-out of receive marketing communications. The Good Guys’ failure was to continue to promote the Store Credit but not alert consumers to the necessity to remain opted-in to receiving marketing communications.

91 The credit-expiry conduct extended over a period of more than four years, from 25 July 2019 to 31 August 2023. The credit-expiry conduct involved The Good Guys’ failure to disclose, or adequately disclose, in the advertisements featuring the promotions that the Store Credit and the StoreCash were subject to the credit-expiry condition. While the credit-expiry condition (except for one promotion) was disclosed in the terms and conditions for the promotions, which were published on a stand-alone page on The Good Guys’ website, The Good Guys accepts that this was insufficient to alert eligible consumers to the condition. The credit-expiry condition was a material limitation to the benefit that a consumer would receive from the credit. For the majority of the Store Credit promotions, the expiry period was seven days and, for the majority of the StoreCash promotions, the expiry period was 10 days. Eligible consumers would therefore have a very short period of time in which they could use the credit. The credit-expiry condition diminished the practical value of the credit and was therefore a matter that should have been given prominent disclosure in any advertisement promoting the credit. Although the email or SMS through which The Good Guys dispatched Store Credit stated the expiry date and it was also displayed in the consumer’s digital wallet in respect of StoreCash, this was only after the consumer had made a relevant purchase. The Good Guys’ customer solutions team received a significant number of complaints during the credit-expiry promotions period from consumers relating to the Store Credit and StoreCash expiry periods. Notwithstanding the complaints that it received, The Good Guys did not cease engaging in the credit-expiry conduct until after it was put on notice of the ACCC’s concerns about that conduct on 16 August 2023. At this time, The Good Guys took immediate steps to change the way StoreCash (which had, by this time, replaced the Store Credit program) was advertised and how the credit expiry periods of StoreCash were disclosed.

92 The failure to disclose, or adequately disclose, the opt-in condition and the credit-expiry condition in the advertisements featuring the promotions rendered the advertisements misleading. While the total number of advertisements published in the relevant promotions period and the number of consumers who viewed the advertisements is not known to the parties, the advertising campaigns for the promotions are likely to have been viewed by millions of consumers. The contravening conduct impacted 116 promotions. At least 1,446 advertisements featuring the promotions were published in combinations of different media including on The Good Guys’ website, a national television station and local and national newspapers, as part of ‘by invitation’ and ‘national’ campaigns for the promotions. The Good Guys sent over 5.3 million text messages and over 6.4 million emails to consumers advertising the Store Credit promotions, as well as a large number of emails and text messages advertising the ‘by invitation’ StoreCash promotions.

93 The credit provision conduct extended over a period of more than three years, from 6 August 2019 until 24 August 2022. A total of approximately 21,500 consumers were not provided with Store Credit by the specified credit dispatch date. The majority of affected consumers were not provided with Store Credit because of technical issues with The Good Guys’ IT systems. A smaller proportion of affected consumers did not receive Store Credit because of technical issues with a third party system or because they voluntarily opted-out of receiving marketing communications. The failure to provide Store Credit was not adequately identified by The Good Guys’ compliance systems and processes until July 2022, notwithstanding that some issues with higher than expected numbers of opted-out customers and some customers not being opted-in after making purchases from The Good Guys’ website were identified by some employees in mid-2021. From around mid-July 2022, after the initial dispatch of Store Credits to consumers in connection with the Tax Time promotion, The Good Guys received an unusually high number of complaints from consumers claiming they had not received Store Credits to which they were entitled. The Good Guys identified and remediated 5,196 consumers on 18 July 2022, four days after the relevant credit dispatch date. The Good Guys voluntarily remediated the remaining affected consumers in March 2023 after it received correspondence from the ACCC in February 2023 in relation to consumer complaints concerning three identified promotions.

Loss or damage resulting from the contraventions

94 There are two broad categories of loss or damage resulting from the contravening conduct.

95 The first category is the loss of the opportunity to use the credit that was offered through the Store Credit and StoreCash promotions. In that regard:

(a) By reason of the opt-in conduct, a small percentage of eligible consumers are likely to have opted-out of receiving marketing communications from The Good Guys after making a qualifying purchase but before receiving their Store Credit via email or SMS, not knowing that doing so made them ineligible to receive a Store Credit. These consumers did not receive their Store Credit. It is not possible to identify the number of these consumers on the information held by the parties. Nevertheless, The Good Guys estimates that approximately 2% of consumers who became eligible to receive Store Credit in the Store Credit promotions period may have voluntarily opted-out of receiving marketing communications before the credit dispatch date.

(b) By reason of the credit-expiry conduct, some consumers are likely to have lost the opportunity to use their Store Credit or StoreCash because they were not aware of the expiry date. The parties submitted, and I accept, that it is not possible to quantify the value of this loss in circumstances where the credit-expiry conduct is not the only reason why a consumer may have not redeemed some or all of the Store Credit or StoreCash provided to them before it expired. The total dollar value of unredeemed Store Credit and StoreCash provided by The Good Guys in the relevant promotions period is approximately $14,400,000, being approximately 65.8% of total issued Store Credit and StoreCash.

(c) By reason of the credit provision conduct, approximately 21,500 consumers were not provided a credit in accordance with the offer made to them.

96 The second category of loss and damage concerns the impact of the credit-expiry conduct on consumers’ purchasing decisions. Some consumers may have been encouraged by the promotions to make purchases at The Good Guys in circumstances where, if they knew the expiry dates of the credit, those consumers may have not made those purchases or made purchases from a competitor. I accept that it is not possible to quantify this form of loss based on the information held by the parties.

97 In respect of the first category of loss or damage, it is appropriate to take into account the steps taken by The Good Guys to address the impact of its contravening conduct, including the voluntary remediation provided to consumers in July 2022 and March 2023, and the further redress to follow pursuant to the consumer redress regime (discussed further below): see Australian Competition and Consumer Commission v Woolworths Limited [2016] FCA 44 at [166]-[167] (Edelman J); Australian Competition and Consumer Commission v AGL South Australia Pty Ltd [2015] FCA 399; 146 ALD 385 at [35]-[40] (White J). Accordingly, the penalties appropriate for the purposes of deterrence should properly be set at a level that reflects that the loss and damage is not, in this case, of an ongoing kind, and affected consumers have been or will soon be remediated.

98 The Good Guys has remediated all consumers who may have suffered loss as a result of the credit provision conduct. On 18 July 2022, four days after the relevant credit dispatch date of Store Credits in connection with the Tax Time promotion and prior to the ACCC raising concerns, The Good Guys provided Store Credit with a total dollar value of approximately $420,000 to consumers who had made qualifying purchases in connection with the Tax Time promotion, but who had not been provided Store Credit because of technical issues or because they had voluntarily opted-out of receiving marketing communications from The Good Guys. In March 2023, following the ACCC raising concerns in relation to complaints relating to three promotions, The Good Guys provided StoreCash to a further approximately 16,000 eligible consumers whom it had identified had not received Store Credit because of technical issues or because they were genuine opt-out consumers. The remediation StoreCash provided in March 2023 was of a higher value than the Store Credit consumers were initially entitled to, had a total dollar value of more than $1,000,000 and had an expiry period of more than 12 months.

99 As discussed further below, The Good Guys has also agreed to provide redress to consumers in respect of the credit-expiry conduct in the form of a store credit to each consumer who was entitled to receive Store Credit or StoreCash in the period of the contravening conduct and did not, wholly or in part, redeem the first such Store Credit or StoreCash provided to them. Store credit provided by way of the consumer redress regime will have an equivalent dollar value to the first Store Credit or StoreCash which the consumer was entitled to receive and will have an expiry date of 12 months from the date it is provided by The Good Guys. The Good Guys estimates that the total dollar value of the store credit available to be redeemed by consumers as part of the consumer redress regime will be approximately $13,300,000, although it is not possible to quantify how much of this will actually be redeemed.

Previous contraventions by The Good Guys of a similar nature

100 The Good Guys has not previously been found by a court to have contravened the ASIC Act or the ACL.

Benefit to The Good Guys

101 Again, there are two categories of potential benefit to The Good Guys from the contravening conduct. The first category is savings made because Store Credit and StoreCash was not used by reason of the contravening conduct. It is not possible to quantify that benefit. While the total dollar value of unredeemed Store Credit and StoreCash provided by The Good Guys pursuant to the promotions was approximately $14,400,000 (being approximately 65.8% of total issued Store Credit and StoreCash), it is expected that some consumers would have not used their Store Credit or StoreCash in any event. The second category is incremental revenue earned by The Good Guys from the sale of qualifying products by reason of the promotions. Again, it is not possible to quantify that benefit because it is not possible to know whether the relevant sales would have been made without the promotions.

Size and financial position of The Good Guys and its parent company

102 The sum required to achieve the objective of deterrence will generally be larger where the company is well resourced: Volkswagen at [154]; Pattinson at [60]. Where the corporation sits within a broader corporate group, it is relevant to take into account that broader structure: Australian Securities and Investments Commission v Westpac Banking Corp (Omnibus) [2022] FCA 515; 407 ALR 1 at [128] (Beach J).

103 The Good Guys and its parent company, JB Hi-Fi, are large and profitable companies.

104 The Good Guys’ sales revenue for the fiscal years 2020 to 2024 was: $2,388.8 million (2020); $2,715.7 million (2021); $2,789.4 million (2022); $2,813 million (2023); and $2,679.1 million (2024). Its gross profit for those years was: $490.2 million (2020); $608.6 million (2021); $649.9 million (2022); $658.4 million (2023); and $621.2 million (2024).

105 JB Hi-Fi’s group level sales revenue for the fiscal years 2020 to 2024 was: $7,918.9 million (2020); $8,916.1 million (2021); $9,232 million (2022); $9,626.4 million (2023); and $9,592.4 million (2024). Its net profit after tax for those years was: $302.3 million (2020); $506.1 million (2021); $544.9 million (2022); $524.6 million (2023); and $438.8 million (2024).

Deliberateness and involvement of senior management

106 There is no evidence that The Good Guys intended to breach or flout the law by the contravening conduct. Nor is there any evidence that senior management of The Good Guys were involved in the contravening conduct. Senior management were not aware of the opt-in conduct and the credit provision conduct until after the receipt of the ACCC’s correspondence of 16 February 2023, or the credit-expiry conduct until after it was raised in the ACCC’s notice to furnish information and produce documents dated 16 August 2023. Senior management of The Good Guys were also unaware of the extent of consumer complaints that had been received regarding the contravening conduct. The Good Guys acknowledged that it is not acceptable that these complaints were received and that the issues raised were not escalated to senior management for resolution and remediation.

Culture of compliance

107 The Good Guys had a detailed ACL compliance program in place during the relevant promotions period. However, the compliance processes did not prevent it from engaging in the contravening conduct and were insufficient to ensure that the contravening conduct was appropriately identified, escalated and actioned when it arose, including by internal review processes for advertisements and complaints escalation processes. The opt-in conduct and the credit-expiry conduct would have been avoided had The Good Guys put in place these additional processes. Despite the receipt of a significant number of complaints in 2022 and 2023 regarding the expiry periods for Store Credit and StoreCash and from consumers who reported they had not received Store Credits despite not opting-out of receiving marketing communications, the issues were not promptly escalated to senior management for resolution and remediation, as they should have been. This demonstrates a failure in The Good Guys’ complaints management and escalation processes.

108 Since late 2023, and in response to the ACCC’s investigation and commencement of these proceedings, The Good Guys has taken steps to improve its compliance program and customer complaints handling and reporting process, including the introduction of a new training module which focusses specifically on producing legally compliant promotional material, and weekly complaints reporting from The Good Guys’ customer solutions team to The Good Guys’ senior management, providing a summary of complaints grouped by subject matter and including detail on areas of concern or where systemic issues are identified.

Level of cooperation with the ACCC

109 The Good Guys has cooperated with the ACCC from the earliest stages. It cooperated with the ACCC during its investigation, including by voluntarily reporting most of the Store Credit promotions which were affected by the credit provision conduct and by providing the ACCC with information and documents which the applicants rely on in this proceeding. It sought to engage in settlement discussions with the ACCC prior to the commencement of this proceeding, and engaged in early settlement discussions, including mediation, following which the resolution was agreed. It also voluntarily provided information and documents to the ACCC during that process. The Good Guys has made appropriate admissions and agreed to the Agreed Facts and to joint submissions at an early stage of the litigation. By resolving this proceeding early, The Good Guys has saved the Court's time and resources including by obviating the need for contested hearings on liability and penalty.

110 The parties submitted, and I accept, that meaningful cooperation of this kind is to be encouraged and warrants recognition in the scale of the penalties to be imposed. It represents an acceptance of the wrongdoing, contrition, and a preparedness to resolve the proceedings in the way most conducive to freeing up the resources of the Court and the regulator. The proposed penalties in this case make allowance for The Good Guys’ cooperation.

Conclusion on the appropriate penalty

111 The Good Guys admits that it contravened s 12DF(1) of the ASIC Act on each occasion that an advertisement featuring the promotions was viewed by a consumer, and the parties agree that while the number of distinct contraventions is not known, the figure is likely to be in the millions. The Good Guys also admits that, in respect of the credit provision conduct, a separate contravention of s 32(2) of the ACL occurred on each of the approximately 21,500 occasions that The Good Guys failed to provide Store Credit to consumers within the time specified. While acknowledging the relevance of the statutory maximum penalties, I accept the parties’ submission that there is no meaningful overall maximum penalty given the potential number of individual contraventions: Reckitt Benckiser at [157].

112 The parties submitted that a penalty of $13,500,000 for the contravening conduct is appropriate in the circumstances of this case. Although the parties propounded a single penalty amount for all of the contravening conduct, they also divided the proposed penalty between the three categories of contravening conduct as follows:

(a) in respect of the opt-in conduct, $1,500,000;

(b) in respect of the credit-expiry conduct, $10,000,000; and

(c) in respect of the credit provision conduct, $2,000,000.

113 In my view, it is not appropriate to impose a single penalty for contravening conduct that involves different categories or courses of conduct. The application of a single penalty in respect of numerous instances of contravening conduct is only appropriate where the numerous instances are part of the same course of conduct. As explained earlier, under the ‘course of conduct’ principle, the Court may elect to impose a ‘concurrent’ or single penalty where the contravening acts or omissions arise out of the same course of conduct or the one transaction. In my view, it is wrong as a matter of principle to impose a single penalty in respect of different categories or courses of conduct.

114 In the present case, the opt-in conduct, the credit-expiry conduct and the credit provision conduct involve separate courses of conduct. The acts or omissions which constitute each of those contraventions are discrete. Further, the circumstances in which each of the contraventions occurred, and the effects of each of the contraventions, differ. It is appropriate to impose a single penalty in respect of each of those courses of conduct.

115 In assessing the appropriate penalty for each course of conduct, I have taken into account the following mitigating factors which apply to each course of conduct: The Good Guys has never previously been found by a court to have contravened the consumer protection laws; The Good Guys cooperated fully with the ACCC to resolve these issues; there is no evidence that The Good Guys intended to breach the law; and there is no evidence that senior management of The Good Guys were involved in the contravening conduct. However, I have also taken into account that The Good Guys is a very large and profitable company.

116 With respect to the opt-in conduct, the contravening conduct applied to Store Credit, it occurred on many occasions and the conduct continued for a considerable period of time. The Good Guys was alerted to the potential problem through customer complaints, but its systems were inadequate to generate an appropriate response to the complaints. On the other hand, the conduct was not intentional, it is likely that a relatively small number of consumers were adversely affected, and The Good Guys has taken steps to provide redress to affected consumers. Weighing all relevant factors, I consider that the penalty of $1,500,000 proposed by the parties is appropriate.

117 The circumstances in which the credit provision conduct occurred has a number of similarities with the opt-in conduct. The credit provision conduct applied to Store Credit and the conduct continued for a considerable period of time. The Good Guys was alerted to the potential problem through customer complaints, but its systems were inadequate to generate an appropriate response to the complaints. On the other hand, the conduct was not intentional, a relatively small number of consumers were adversely affected, and The Good Guys has taken steps to provide redress to affected consumers. Weighing all relevant factors, I consider that the penalty of $2,000,000 proposed by the parties is appropriate.

118 The credit-expiry conduct should be regarded as the most serious. The contraventions occurred for several years and the contravening conduct impacted a large number of advertisements which were likely to have been viewed by millions of consumers. A majority of the Store Credit and StoreCash issued by The Good Guys had a very short expiry date of only a few days. By failing to disclose or adequately disclose the expiry date, the Store Credit and StoreCash was rendered largely illusory. Ordinary and reasonable consumers would not have anticipated that the offered credit would expire in a matter of days. The expiry date was such a significant limitation on the offer of credit that the failure to disclose it was seriously misleading. On the other hand, there is no evidence to indicate that the conduct was intentional and The Good Guys has taken steps to provide redress to affected consumers. Weighing all relevant factors, I consider that the penalty of $10,000,000 proposed by the parties is appropriate.

G.    Consumer redress regime

119 The parties agree to the making of orders by the Court under s 12GNB of the ASIC Act requiring The Good Guys to implement a redress regime for consumers who suffered, or are likely to have suffered, loss or damage because of the credit-expiry conduct which contravened s 12DF(1).

120 Section 12GNB relevantly provides as follows:

12GNB Orders to redress loss or damage suffered by non-party consumers etc.

Orders

(1)    Without limiting the generality of section 12GD, if:

(a)    a person:

(i)    engaged in conduct (the contravening conduct) in contravention of a provision of Subdivision C or D; or

(ii)    is a party to a contract who is advantaged by a term (the declared term) of the contract in relation to which the Court has made a declaration under section 12GND; and

(b)    the contravening conduct or declared term caused, or is likely to cause, a class of persons to suffer loss or damage; and

(c)    the class includes persons who are non-party consumers in relation to the contravening conduct or declared term;

the Court may, on the application of ASIC, make such order or orders (other than an award of damages) as the Court thinks appropriate against a person referred to in subsection (2) of this section.

Note: The orders that the Court may make include all or any of the orders set out in section 12GNC

(2)    An order under subsection (1) may be made against:

(a)    if subparagraph (1)(a)(i) applies—the person who engaged in the contravening conduct, or a person involved in that conduct; or

(b)    if subparagraph (1)(a)(ii) applies—a party to the contract who is advantaged by the declared term.

(3)    The Court must not make an order under subsection (1) unless the Court considers that the order will:

(a)    redress, in whole or in part, the loss or damage suffered by the non-party consumers in relation to the contravening conduct or declared term; or

(b)    prevent or reduce the loss or damage suffered, or likely to be suffered, by the non-party consumers in relation to the contravening conduct or declared term.

…

(8)    In determining whether to make an order under subsection (1), the Court need not make a finding about either of the following matters:

(a)    which persons are non-party consumers in relation to the contravening conduct or declared term;

(b)    the nature of the loss or damage suffered, or likely to be suffered, by such persons.

121 The terms of the proposed consumer redress regime involve the provision of store credit to each consumer who:

(a) was entitled to receive Store Credit or StoreCash as a result of making a qualifying purchase as part of a Store Credit promotion or StoreCash promotion; and

(b) did not redeem the first Store Credit or StoreCash which they were entitled to receive, either in whole or part (initial entitlement).

122 The store credit provided by way of the proposed consumer redress regime will:

(a) have an equivalent dollar value to the first Store Credit or StoreCash which the consumer was entitled to receive, unless the consumer made more than one qualifying purchase where the Store Credit or StoreCash was issued on the same day as the initial entitlement, in which case they will also be provided with redress to the value of each such additional entitlement to Store Credit or StoreCash which was not redeemed in whole or in part; and

(b) an expiry date of 12 months from the date it is provided by The Good Guys.

123 The proposed consumer redress is limited to the first Store Credit or StoreCash that a consumer was entitled to receive on the basis that, when a consumer received subsequent Store Credit or StoreCash, they are more likely to have been aware of The Good Guys’ use of expiry periods based on their past experience with The Good Guys.

124 As noted earlier, it is estimated that the total dollar value of the store credit that will be provided under the proposed consumer redress regime will be approximately $13,300,000.

125 For the following reasons, I am satisfied that the Court has power to make the proposed order under s 12GNB of the ASIC Act and that it is appropriate to do so.

126 First, the order is sought against a person who contravened s 12DA(1) and s 12DF of the ASIC Act, which are within Subdiv D of Pt 2 of the Act (which satisfies s 12GNB(2)(a)).

127 Second, the credit-expiry conduct caused or is likely to have caused a class of consumers to suffer loss or damage. While the Court need not make a finding about which persons are non-parties in relation to the contravening conduct, the relevant class in this case is comprised of those consumers who may have lost the opportunity to use Store Credit or StoreCash before it expired as a result of the credit-expiry conduct. There is no requirement that there be a precise correspondence between the redress that might be received by a particular member of the class and the actual loss suffered by that member: Australian Competition and Consumer Commission v Geowash Pty Ltd (No 4) [2020] FCA 23; 376 ALR 701 at [185]-[187] (Colvin J). Further, the Court need not make a finding about the nature of the loss or damage suffered, or likely to be suffered, by such persons in the class. For these reasons, it is immaterial that the class of consumers to be redressed may also include consumers who did not redeem their Store Credit or StoreCash for reasons unrelated to the credit-expiry conduct.

128 Third, the proposed order will redress, in whole or in part, the loss or damage suffered or likely to have been suffered by the non-party consumers in relation to the contravening conduct. This is because the consumer redress regime will provide all consumers who did not redeem their first Store Credit or StoreCash another opportunity to do so.

129 The proposed consumer redress regime requires The Good Guys to provide eligible consumers with a notice informing them of the redress available to them by email or SMS. The parties sought a further order under s 12GLA(1) of the ASIC Act, or in the alternative under s 12GLB(1), requiring the redress notice to be sent to eligible consumers. In my view, s 12GNB is a sufficient source of power for the Court to require The Good Guys to implement the consumer redress regime, which includes the giving of notices to eligible consumers, and it is unnecessary for the Court to make a further order under s 12GLA(1) or s 12GLB(1) for that purpose.

130 The parties also sought an order pursuant to s 37AF(1) of the FCA Act that the form of the notice to be given to eligible consumers under the consumer redress regime be kept confidential until final completion of the consumer redress regime. The purpose of that order is to reduce the risk of the form of the notice being copied by dishonest persons and used to scam consumers. Having regard to that risk, I am satisfied that the confidentiality order is necessary to prevent prejudice to the administration of justice.

H.    Orders

131 In conclusion, I will grant leave to the applicants to file and serve the further amended originating application dated 12 August 2025.

132 I consider that the form of declarations proposed by the parties in relation to the contraventions of s 12DA(1) and s 12DF(1) are appropriate. Having found that s 12DE(2A) is not applicable to the credit provision conduct, I will amend that declaration to refer to s 32(2) of the ACL. The form of that declaration as proposed by the parties is otherwise appropriate.

133 I will impose the following pecuniary penalties with respect to each category of contravening conduct:

(a) an aggregate pecuniary penalty of $1,500,000 in respect of the opt-in conduct;

(b) an aggregate pecuniary penalty of $10,000,000 in respect of the credit-expiry conduct; and

(c) an aggregate pecuniary penalty of $2,000,000 in respect of the credit provision conduct.

134 I will also make orders pursuant to s 12GNB of the ASIC Act requiring The Good Guys to implement a consumer redress regime in substantially the same form as proposed by the parties.

135 The Good Guys has agreed to pay the applicants’ costs in the amount of $200,000. I will make an order for costs in that fixed amount.

Associate:

Dated:    8 September 2025