I had a closer look at this penalty judgment and it is clear the ACCC has to appeal. The judgment is wrong on many fronts particularly its conclusion that a penalty of $350,000 will achieve any level of general deterrence. That is simply a laughable conclusion.The judge also seems to have found that the conduct was not deliberate despite Kogan clearly raising prices by 10% prior to the sale, offering a 10% Tax Time discount and then reducing prices after the sale.
Finally, the judge effectively ignored two previous ACCC matters against Kogan and related entities in 2009 and 2016 where they had been caught engaging in the pretty much the same conduct. The judge’s conclusion was "...I do not take these prior incidences as indicative of a culture of disregard for compliance with Australian law."
However, the worst aspects of the case are that the ACCC only asked for $2 million penalty in the first place and did not even seek any consumer redress, despite the fact that consumers bought products thinking they were 10% cheaper. At the very least, consumers should have received consumer redress equal to their expectation