High Court of Australia Judgment Summary Notes

Google Inc v Australian Competition and Consumer Commission [2013] HCA 1 

Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia, in which it was found that Google Inc (“Google”) had engaged in misleading or deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth) (“the Act”) by displaying certain internet search results.

The Google search engine displayed two types of search results in response to a user’s search request: “organic search results” and “sponsored links”. Organic search results were links to web pages that were ranked in order of relevance to the search terms entered by the user. A sponsored link was a form of advertisement. Each sponsored link was created by, or at the direction of, an advertiser, who paid Google to display advertising text which directed users to a web site of the advertiser’s choosing.

The Australian Competition and Consumer Commission (“the ACCC”) claimed that particular sponsored links displayed by the Google search engine between 2005 and 2008 had conveyed misleading and deceptive representations. By publishing or displaying those search results, Google was said to have contravened s 52 of the Act, which provided that a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

At first instance, the primary judge found that although the impugned representations were misleading and deceptive, those representations had not been made by Google. Ordinary and reasonable members of the relevant class of consumers who might be affected by the alleged conduct would have understood that sponsored links were advertisements and would not have understood Google to have endorsed or to have been responsible in any meaningful way for the content of those advertisements.

The ACCC successfully appealed to the Full Court of the Federal Court, which unanimously found that Google had itself engaged in misleading or deceptive conduct by publishing and displaying the sponsored links. By special leave, Google appealed to the High Court.

The High Court unanimously allowed the appeal. Google did not create the sponsored links that it published or displayed. Ordinary and reasonable users of the Google search engine would have understood that the representations conveyed by the sponsored links were those of the advertisers, and would not have concluded that Google adopted or endorsed the representations. Accordingly, Google did not engage in conduct that was misleading or deceptive.

Commissioner of Police v Eaton [2013] HCA 2

Today a majority of the High Court allowed an appeal brought by the appellant, the Commissioner of Police of New South Wales, against a decision of the Court of Appeal of the Supreme Court of New South Wales which held that the unfair dismissal regime in the Industrial Relations Act 1996 (NSW) (“the IR Act”) applied to the dismissal of a probationary police officer under the Police Act 1990 (NSW). The first respondent, Mr Eaton, had applied to the Industrial Relations Commission of New South Wales (“the IR Commission”) for a remedy under s 84(1) of the IR Act claiming his dismissal from the New South Wales Police Force was harsh, unreasonable or unjust. He had been employed as a probationary police officer but was dismissed by a delegate of the appellant under s 80(3) of the Police Act, which permits the dismissal of a probationary police officer at any time and without reason.

The IR Commission held that the first respondent’s dismissal was harsh and unreasonable and unjust, and the appellant was ordered to reinstate him. On appeal, a Full Bench of the IR Commission held that the IR Commission lacked jurisdiction to determine the first respondent’s claim and his claim was dismissed. The Full Bench held that a dismissal made pursuant to s 80(3) of the Police Act was excluded from review by the IR Commission under the unfair dismissal regime of the IR Act. The first respondent successfully applied to the Court of Appeal for judicial review of the Full Bench’s decision. The Court of Appeal held that the IR Commission had jurisdiction and remitted the matter to the Full Bench to be determined according to law.

On appeal by special leave to the High Court, the appellant submitted that the terms of s 80(3) of the Police Act were inconsistent with a right to review under the IR Act. The Court, by majority, agreed and allowed the appeal. The majority held that the Police Act indicated a legislative intention that a decision made under s 80(3) to dismiss a probationary police officer was not to be subject to review by the IR Commission. This was indicated in several ways including the manner in which s 80(3) was framed, suggesting as it did that the appellant’s power to dismiss was unfettered. There was incoherence between reasons not being required by s 80(3) and the matters to be considered by the IR Commission in determining an unfair dismissal claim and, in addition, the relief available under the IR Act was at odds with the appellant’s right under s 80(3) to dismiss. The majority also considered that an anomalous position would result if probationary police officers were given greater procedural rights under the IR Act’s unfair dismissal regime than confirmed police officers whose unfair dismissal claims are regulated by the Police Act.