In a decision handed down by the Federal Court last week, O’Bryan J has reduced penalties jointly proposed by the ACCC and Uber B.V. (Uber) for Uber’s contraventions of the Australian Consumer Law (ACL), from $26M to $21M.
In what was described as an “unusual case”, O’Bryan J was highly critical of the evidence adduced by the parties in support of the proposed total penalty, noting in particular the lack of evidence with respect to likely loss or damage to consumers and the financial gain by Uber. In addition, his Honour did not place as great an emphasis on Uber’s financial position as the ACCC may have hoped, stating “it is not possible to assess the appropriate penalty to achieve deterrence by reference to the financial size of [Uber] without attention to the nature, extent and circumstances of contravening conduct”. In doing so, his Honour:
- refocussed the principle established in cases such as Pattinson and ACCC v Leahy Petroleum that imposing a larger penalty is justified to achieve deterrence for companies with vast resources;
- noted that the majority in Pattinson also made clear that both the circumstances of the contravenor and the circumstances of the contravention may be relevant to the assessment of the level of penalty required to achieve deterrence; and
- emphasised that it is not possible to assess the appropriate penalty to achieve deterrence by reference to the financial size of the respondent without attention to the nature, extent and circumstances of the contravening conduct.
In April 2022, the ACCC commenced proceedings against Uber for alleged contraventions of ss 18 and 29(1)(i) of the ACL. The ACCC alleged that Uber had engaged in two categories of conduct:
- UberTaxi Representations: the ACCC alleged that Uber had made false, misleading or deceptive representations with respect to the price of fares within the UberTaxi function.
- Cancellation Representations: the ACCC alleged that Uber had made false, misleading or deceptive representations incorrectly communicating that consumers may be charged a cancellation fee within the free cancellation window.
Uber admitted to contravening the ACL and indicated its agreement to a $26M penalty sought by the ACCC. This penalty included $8M for the UberTaxi Representations, and $18M for the Cancellation Representations.
During the penalty hearing on 25 July 2022, O’Bryan J refused to approve the penalty without further evidence from the parties to consider whether the proposed penalty was appropriate. For further background to this penalty hearing, please see our previous blog post here.
Penalty Judgment on 7 December
After receiving further evidence from both parties, O’Bryan J held that the $18M penalty, albeit on the higher end of the range, was appropriate for the Cancellation Representations. For the UberTaxi Representations, however, his Honour lowered the penalty from $8M to $3M.
In coming to his decision, O’Bryan J emphasised that the mandatory considerations outlined within s 224(2) of the ACL will have “great significance” in determining the appropriateness of a proposed penalty and commented that the evidence presented at the penalty hearing going to these considerations had been grossly inadequate. His Honour’s assessment of these considerations is set out below.
The nature and extent of the act and any loss suffered as a result
O’Bryan J emphasised that understanding the nature and extent of any loss or damage was of primary importance in assessing whether the proposed penalty was appropriate. Referring to Singtel Optus, his Honour stated that “the absence of loss or damage to consumers is a circumstance which would usually attract a less severe penalty than if substantial harm had been inflicted…”.
In terms of the UberTaxi Representation, consumers were actually charged a lower fee than that displayed on the platform. O’Bryan J found that in this situation, there was no loss or damage suffered by consumers. Similarly, on the evidence provided, his Honour was not able to infer that consumers who had seen the estimated fare and decided not to complete their booking suffered any loss. His Honour was also unable to infer that any significant loss or damage was suffered by UberTaxi drivers- while the UberTaxi Representation would, in theory, have depressed demand for the UberTaxi service (with the effect that UberTaxi drivers may have earned reduced revenue), the evidence did not support that finding.
In contrast, O’Bryan J found it possible that some consumers suffered modest loss or damage on the basis of the Cancellation Representations. His Honour concluded this based on the fact that a small percentage of consumers who were incorrectly shown the cancellation warning chose not to cancel as a result, and may have been deterred from cancelling subsequent trips for the same reason.
The circumstances in which the act took place
O’Bryan J did not appear to place much weight on this factor, noting that the UberTaxi and Cancellation Representations were “run of the mill” misstatements. His Honour did, however, emphasise that consumer confidence is dependent upon consumers being given “reliable, truthful, and accurate information”, and customers therefore require that Uber provide accurate pricing and cancellation information.
Whether Uber had previously engaged in similar conduct
O’Bryan took into account that UBV had not engaged in similar conduct before.
In addition to the mandatory considerations in s 224(2), O’Bryan J also considered the factors commonly known as the “French Factors”. Most notably, his Honour considered Uber’s cooperation with the ACCC during its investigation, whether the contraventions arose from the conduct of senior management, and the size and financial position of Uber. With respect to the latter, O’Bryan J noted that while the pecuniary penalty required to deter companies with large resources is usually high, it was only one factor to be considered in assessing the proposed $26M penalties rather than a conclusive factor. In respect of the Cancellation Representations, his Honour found the fact that two senior managers of Uber Australia had become aware that displaying cancellation warnings would lead to fewer cancellations, but did not take steps to ensure the cancellation messaging was accurate, to be of particular importance when determining that the $18M penalty for the Cancellation Representation was appropriate.
More generally, it is relevant to note O’Bryan J’s comments that “the conclusion reached in this case should not be understood as any reduction in the Court’s resolve to impose penalties that are appropriate to achieve the statutory objective of deterring contraventions of the [ACL]”. ACCC Chair Gina Cass-Gottlieb has since stated, however, that the $21M “clearly signals to businesses that misleading consumers about the cost of a product or service is a serious matter which can attract substantial penalties’.
Although his Honour’s decision did not drastically alter the penalties jointly proposed by the parties, O’Bryan J’s refusal to accept the parties’ submissions without further evidence serves as a powerful reminder that the Court does not simply “rubber stamp” agreed penalties. Rather, the Court must discharge its statutory function by imposing a penalty that is appropriate — that is, one that strikes a reasonable balance between oppressive severity and the need for deterrence. This is a multi-factored decision, involving close consideration of the mandatory factors in s 224(2), as well as the French Factors. Indeed, as his Honour observed, mere consent to a penalty does not render the penalty “appropriate” in the relevant sense.
The decision also makes clear that parties proposing agreed penalties must adduce sufficient evidence to support such penalties. In particular, O’Bryan J’s comments that “very substantial” penalties require evidence “of a substantive kind” may cause parties to reconsider putting forward narrow admissions and limited evidence in support of significant penalties.