Michael Hodge KC (leading Ms E Brumby) appeared for the respondent, instructed by Baker McKenzie.
In the liability stage of these proceedings, Horan J found that the respondent, eHarmony, had contravened ss 18, 29(1)(b), (g), (i) and (m), 34 and 48 of the Australian Consumer Law (ACL). This conduct included eHarmony misleading consumers regarding its “free” Basic membership, its monthly pricing, and the automatic renewal of fixed-term plans. The parties were then required to file and serve proposed orders.
The applicant (Australian Competition and Consumer Commission) sought to defer declarations to the penalty stage, while the respondent sought immediate declarations so it could apply for leave to appeal.
Horan J weighed the risk of fragmented proceedings and multiple appeals against the risk of a wasted penalty hearing if liability were later overturned. Factors favouring early declarations included the numerous discrete contraventions and the likely complexity of the penalty hearing.
The Court held that it was appropriate to make declarations immediately, declaring that the respondent had contravened the impugned sections of the ACL. It was ordered that the matter be listed for a case management hearing on a date no earlier than 28 days following the orders, with costs reserved.
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