The Federal Court considered whether The Good Guys’ “prompt” response to its multiple contraventions should be considered against the $13.5 million settlement it reached with the consumer watchdog.
The Good Guys, a subsidiary of JB Hi-Fi, admitted last month that the advertisement and execution of its “Store Cash” and “Store Credit” promotions between July 2019 and August 2023 were misleading or deceptive and in breach of the Australian Consumer Law.
The major electronics retailer and the Australian Competition and Consumer Commission (ACCC) agreed to a $13.5 million pecuniary penalty, a customer remediation program, declarations for the contraventions, and to cover legal costs in the sum of $200,000.
While The Good Guys told consumers the only requirement to receive store credit or cash was to make a qualifying purchase, they were also made to opt in to marketing communications.
The retailer also represented that the credit would not expire – or would only do so in a reasonable time – despite some promotions having a limit of seven to 10 days. To make matters worse, thousands of consumers were unable to access the credit within the specified time.
Appearing in the Federal Court for approval on Monday, 18 August, Nicholas De Young, appearing for the ACCC, confirmed with Justice Michael O’Bryan that it was the latter two that were the “most serious” contraventions and should receive a higher penalty.
De Young added that there were approximately 21,500 consumers who were affected by The Good Guys’ time period limitations.
Before he would sign off on the settlement, Justice O’Bryan noted The Good Guys had “acted promptly” when it became aware of the time limit problem and “engaged in its own redress” with consumers.
With this in mind, Justice O’Bryan said it was a “very significant factor” in a potential reduction for that portion of the penalty.
Justice O’Bryan said he was primarily concerned with whether there was a “reasonable relationship” between the harm done to consumers, the benefit to The Good Guys, and the monetary penalty.
“I think the court is always looking to understand the penalty and the harms to consumers … and ensure that the task of deterrence is served without being oppressive as well,” Justice O’Bryan said.
Pending confidentiality matters, judgment was reserved.
When the proceedings were announced in July 2024, ACCC chair Gina Cass-Gottlieb said businesses “should be on notice” that they risk enforcement action under Australian Consumer Law if promotional conditions are not appropriately disclosed.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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