The Good Guys make good redress

We explore consumer remediation as an enforcement outcome sought by the ACCC in ACCC v The Good Guys Discount Warehouses (Australia) Pty Ltd [2025] FCA 1085.

On 9 September 2025, the Federal Court of Australia ordered The Good Guys Discount Warehouses (Australia) Pty Ltd (The Good Guys) to pay $13.5 million in penalties for contraventions of the Australian Consumer Law (ACL) and consumer protection provisions of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act).

The Court also ordered The Good Guys to implement a consumer redress regime to compensate consumers who suffered or are likely to suffer harm from the contravening conduct. The estimated value of consumer redress is $13.3 million.

This case is the most recent example of regulators looking beyond civil penalties and seeking court orders or undertakings to remediate consumers. In this blog post, we explore this recent focus on identifying and remedying consumer harm and the key takeaways for businesses engaging with regulators in relation to misleading conduct.

The decision in ACCC v The Good Guys

Facts

The ACCC brought proceedings against The Good Guys regarding promotions conducted by The Good Guys offering store credit to consumers if they made a qualifying purchase. The promotions were referred to as ‘Store Credit’ from 25 July 2019 to 14 August 2022, and ‘StoreCash’ from 5 September 2022 to 31 August 2023.

The Good Guys admitted, and the Court found, that the following conduct contravened consumer protection laws:

• Failing to disclose or adequately disclose that the Store Credit promotion was conditional upon the consumer remaining opted-in to receive marketing communications (the “opt-in conduct”), which was found to be misleading or deceptive conduct in contravention of s 12DA(1) and conduct that is liable to mislead the public in contravention of s 12DF(1) of the ASIC Act.
• Failing to disclose or adequately disclose that the Store Credit and StoreCash promotions had to be used within a specified timeframe (the “credit-expiry conduct”), which was found to be misleading or deceptive conduct in contravention of s 12DA(1) and conduct that is liable to mislead the public in contravention of s 12DF(1) of the ASIC Act.
• Failing to provide Store Credit to approximately 21,500 eligible consumers with the time specified in its offer (the “credit provision conduct”), which was found to be offering a rebate with the intention of not provided it, or of not providing it as offered, in contravention of section 32(2) of the Australian Consumer Law.

The parties jointly proposed, and the Court ordered, a penalty of $13.5 million in respect of The Good Guys’ contravening conduct, alongside a consumer redress scheme and costs.

A side note: Australian Consumer Law or the ASIC Act?

The ACCC and The Good Guys agreed that the consumer protection provisions concerning misleading conduct in the ASIC Act (s 12DA(1) and s 12DF(1)) applied to the opt-in conduct and credit-expiry conduct, rather than the analogous provisions in the ACL (s 18 and s 33). This is because the Store Credit and StoreCash promotions were ‘financial products’ within the meaning of the ASIC Act, the supply of which is not governed by the ACL.

However, Justice O’Bryan concluded that s 32(2) of the ACL applied to the credit provision conduct, not its analogous provision in the ASIC Act (s 12DE(2A)). Section 32(2) of the ACL makes it an offence to offer “any rebate, gift, prize or other free item” in connection with the supply or possible supply of goods or services or promotion of such supply with the intention of not providing it or of not providing it as offered. Justice O’Bryan applied the ACL to the credit provision conduct because the rebate offered through Store Credit/StoreCash by The Good Guys was in connection with the consumer electronics and household appliances sold by The Good Guys, such that the relevant supply was not the supply of financial services or products.

Focus on voluntary remediation in the determination of the penalty

Justice O’Bryan accepted the $13.5 million penalty proposed by the parties, which the parties agreed to divide between each of the 3 courses of conduct as follows:

• In respect of the opt-in conduct, $1.5 million;
• In respect of the credit-expiry conduct, $10 million; and
• In respect of the credit provision conduct, $2 million.

In coming to a determination of an appropriate penalty for each contravention, O’Bryan J considered the factors listed in s 12GBB(5) of the ASIC Act (analogous to s 224(2) of the ACL) and the additional penalty factors derived from the judgment of French J in Trade Practices Commission v CSR Ltd [1990] FCA 762 as follows.

The credit-expiry conduct attracted the highest penalty of $10,000,000. This was because O’Bryan J found it was the ‘most serious’ conduct because it extended for more than 4 years, impacted a large number of advertisements which could have been viewed by ‘millions of consumers’, and related to such short expiry periods that the promotions were rendered ‘largely illusory’ and ‘seriously misleading’. It also attracted a ‘significant number of complaints’ from customers, notwithstanding which The Good Guys did not cease the conduct until it was put on notice of the ACCC’s concerns. However, the conduct was not intentional, and after the ACCC raised concerns, the Good Guys took steps to change the way the promotion was advertised and how the credit expiry periods were disclosed and redress consumers.

In contrast, the opt-in conduct and the credit provision conduct attracted the lowest penalties of $1,500,000 and $2,000,000 respectively. O’Bryan J found this conduct only likely affected a relatively small number of consumers, was not intentional and steps to provide redress had been taken.

Some common themes emerged in His Honour’s assessment of the appropriate penalty for each course of conduct. Most significantly, His Honour considered the fact that The Good Guys had already taken steps to redress consumers and had agreed to a consumer redress regime alleviated the loss or damage resulting from the contraventions, as follows:

• The Good Guys had already voluntarily remediated all consumers who may have suffered loss because of the credit provision conduct and the opt-in conduct. In July 2022, The Good Guys provided Store Credits to consumers who made qualifying purchases but had not been provided with Store Credit due to technical issues or because they had opted-out of receiving marketing communications. Further, in March 2023, The Good Guys provided StoreCash to further eligible consumers it had identified.
• The Good Guys also agreed to provide redress to consumers in respect of the credit-expiry conduct through the consumer redress regime proposed by the parties.

Other mitigating factors that applied to each course of conduct were that:

• The Good Guys has never been found to contravene consumer protection laws by a Court.
• The Good Guys cooperated with the ACCC.
• There was no evidence that The Good Guys intentionally breached the law or had senior management involved in the breach.

However, O’Bryan J also accounted for the following additional factors in assessing each course of conduct:

• The Good Guys is a large and profitable company.
• The Good Guys had a detailed ACL compliance program in place, but O’Bryan J considered the program to be inadequate as (i) it did not prevent The Good Guys from engaging in the contravening conduct, and (ii) failed to ensure that the issues arising out of the conduct were appropriately escalated to senior management despite a significant number of complaints received. Nevertheless, His Honour noted that The Good Guys has taken steps to improve its compliance program in response to the ACCC’s investigation and the commencement of proceedings.

The consumer redress provisions in action

The parties proposed orders for The Good Guys to implement a consumer redress regime pursuant to s 12GNB of the ASIC Act in relation to the credit expiry conduct.

Section 12GNB(1) of the ASIC Act and s 239(1) of the ACL each provide for the Court making orders to redress a ‘class of persons’ who are non-parties to the proceedings brought by ASIC or the ACCC. This includes consumers. The equivalent consumer redress provision for contraventions of the Australian Consumer Law is ACL s 239.

The redress provisions in both legislation state that:

• if a person engages in conduct in contravention of certain provisions of the ASIC Act or ACL, and
• the conduct caused, or is likely to cause, a class of persons to suffer loss or damage,

a Court may make such order or orders (other than an award of damages) as the Court thinks appropriate against that person.

In this case, the Court made orders to implement a consumer redress regime applying to consumers who suffered, or are likely to suffer, loss or damage due to the credit-expiry conduct.[1] Under the regime, The Good Guys is required to provide store credit with an expiry date of 12 months to each consumer who made a qualifying purchase and was thus entitled to receive Store Credit or StoreCash, but did not redeem the first Store Credit or StoreCash which they were entitled to receive.

O’Bryan J decided that it was appropriate to make the proposed order requiring The Good Guys to implement a consumer redress regime because:

• the credit-expiry conduct caused or is likely to cause a class of consumers to suffer loss or damage because consumers may have lost the opportunity to use Store Credit or StoreCash before it expired due to the credit-expiry conduct,
• the redress regime will provide all consumers who did not redeem their first Store Credit or StoreCash another opportunity to do so, and
• there is no requirement for that there be a precise correspondence between the redress that might be received and the actual loss the consumer might have suffered. Therefore, it was appropriate for consumers to receive redress even if their reason for not redeeming their Store Credit or StoreCash was unrelated to contravening conduct.

Consumer redress or Court-enforceable undertaking?

Courts have observed that consumer redress orders under ACL s 239 are a broad ‘remedial power’ to ‘allow the Court to undo damage to third parties caused by contravening conduct’.[1] Sections 12GNC of the ASIC Act and s 243 of the ACL provide a non-exhaustive list of example redress orders that a Court may make. These include orders directing the respondent to refund money or return property to a non-party, or directing the respondent, at his or her own expense, to repair or provide parts for, goods that have been supplied under the contract or arrangement to a non-party.

The ACCC has increasingly sought consumer redress in ACL cases

There have also recently been an increasing number of cases where the ACCC obtained remediation for consumers by accepting Court-enforceable undertakings under section 87B of the  Competition and Consumer Act (CCA). For example, in 2025, the ACCC accepted undertakings with consumer remediation programs from Optus, Qantas and Bupa. In its compliance and enforcement priorities for 2025/26, the ACCC identified that it will seek to resolve contraventions of the Competition and Consumer Act 2010 by accepting enforceable undertakings, which generally involve an admission of responsibility, an agreement to stop and not recommence the concerning conduct, remedy of the conduct, and establishment or review of processes to improve compliance with the Competition and Consumer Act 2010.

It is likely that the ACCC and ASIC will continue to seek remedies for affected consumers as well as penalties for misleading conduct, using both Court orders and enforceable undertakings.

Key takeaways

The key takeaways are:

• The ACCC and ASIC are likely to continue to try to identify consumer harm from misleading conduct and seek orders or undertakings for consumer redress, which may increase businesses’ financial exposure from contraventions of consumer protection laws beyond pecuniary penalties.
• The Court does not need to identify the specific affected consumers to make redress orders or the precise loss suffered by each consumer – it only needs to identify a class of consumers that may have been affected by the contravening conduct and that the orders will redress, in whole or in part, the contravening conduct.
• Voluntary steps taken to redress consumers are looked upon favourably by the court in the assessment of an appropriate penalty. The rationale is that the penalty for deterrence should be set at a level that reflects that the loss or damage is not ongoing.
• Businesses that identify a contraventions or potential contraventions of the ACL should consider whether they should offer an enforceable undertaking to the ACCC to remedy the conduct.

[1] Australian Competition and Consumer Commission v Clinica Internationale Pty Ltd (No 2) [2016] FCA 62 at [293].

Image credit: The Good Guys Wagga by Bidgee / Wikimedia Commons / CC3.0 / Remixed to B&W and resized