60 It is not necessary to discuss in these reasons in any further detail the terms of the declaration.
61 The applicant also sought injunctive orders. There is no doubt as to the Court's power to make such orders under s 80 of the TP Act. I do not consider that it is necessary or appropriate to do so in this instance. I accept that the contravention was accidental, and that the respondent did not intend to mislead or deceive consumers in the way that it did. Its response, when the problem was brought to its attention, was less than satisfactory; it was uncompromising through its Customer Care section. However, soon after that it recognised the problem, at least in respect of one of the models of television and then made decisions to accept belated claims in respect of that model because it could not itself meet delivery orders and then belated claims generally because it was hard to identify belated claims due to late delivery of that model only. It also decided to accommodate incomplete claims where the serial number was missing or incomplete. However, as I have observed above, it made no effort to inform other buyers of those decisions who might simply have decided they were unable to meet the conditions and did not make a claim. I do not think that the sanction of contempt of court for disobeying an injunction will add to the motivation of the respondent to avoid such a contravention in respect of any similar promotion it conducts in the future: cf BMW Australia Ltd v Australian Competition and Consumer Commission [2004] FCAFC 167 at [39]. There is nothing to suggest this form of promotion is systematic within the respondent, with the deficiencies I have found, or that such a promotion in the future will include those deficiencies. I note that there was some evidence that some other manufacturers of televisions and like products periodically engage in similar promotions of giveaways with a purchase of their products. The declaratory order I propose to make will have a sufficiently salutary effect on those engaging in such promotions to ensure they are not in contravention of s 52 of the TP Act in the same or similar ways to the conduct of the respondent.
62 The applicant also seeks orders that the respondent undertake newspaper advertising in the newspapers in which the misleading advertising was placed, and publish on its website, notice of a summary of the conclusions of the Court on this application (if it were made) of any injunctive orders. The proposed publication of the outcome of the application is not directed specifically to those consumers who may have been eligible for a Bonus Wii but for delayed delivery of their television. It might have been possible to propose orders to that end, albeit difficult given the elapse in time. The proposed orders in the circumstances, as I have decided not to make any injunctive order, would really do no more than provide a means of publicising the decision of the Court and "announce a 'win' for" the applicant; see Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 95 FCR 114 at [49] per French J (as he then was). The applicant contends an order would not merely announce a win but would inform the market of the outcome of the litigation so that they have "at least a broad understanding" of the way in which the Court has applied the norms of conduct prescribed by the TP Act: Australian Competition and Consumer Commission v Boost Tel Pty Ltd [2010] FCA 701 at [117] per Siopis J. I do not agree in the circumstances of this case. As noted above at [61], although there is some evidence that some participants in the industry participate in similar promotions, I do not accept that it is such an endemic industry problem that corrective advertising is necessary. The declaratory order I propose to make will have a sufficiently informative effect on the participants in the industry.
63 It is important to note that the power to order advertising is protective or corrective or remedial rather than punitive: Australian Competition and Consumer Commission v Signature Security Group Pty Ltd [2003] FCA 3 at [46] per Stone J. Consequently, as her Honour then said at [46]-[49], with the progressive elapse of time, the utility of such advertising diminishes.
64 In my view, having regard to the circumstances in which this contravention was committed, including that contravening the conduct was not deliberate, I do not consider there is sufficient utility in requiring the respondent to undertake the proposed advertising to warrant the making of such an order.
65 Finally, the applicant seeks an order that the respondent establish a Trade Practices Compliance and Education/Training Program, to be maintained at its own expense for a period of three years, and that a copy of any documents generated in the process be provided to the applicant. That, too, is resisted by the respondent.
66 The Court clearly has power to make such an order, under ss 80 and 86C(2) of the TP Act; see eg Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd [2009] FCA 960; Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682.
67 Section 86C(4) empowers the making of a probation order to ensure the contravenor does not engage in the contravening conduct, or similar conduct, in the future. The respondent contends that the applicant's proposed order is too broad. The proposed order is to ensure the employees of the respondent are aware of their responsibilities and obligations "in relation to the conduct declared by the Court in this proceeding to be in contravention of the [TP Act] and any similar or related conduct".
68 There is no evidence of the respondent having a trade practices compliance program. Nor is there any explanation as to why any trade practices compliance program it does have allowed the contravening conduct to occur. Nor is there any evidence to indicate what, if any, steps it has taken to avoid the sort of contravening conduct which has occurred. It is appropriate in my view in the circumstances to make a probation order of the general kind suggested by the applicant. The respondent, through its Customer Care section, was unresponsive to a valid concern of one known consumer, and as I have concluded to some other consumers. That was so, even though in respect of the particular model offered as part of the promotion, neither it nor its retailers had adequate stock to satisfy the demand which the promotion was intended to, and did, generate. It was only when the matter came to the attention of its more senior management that that problem was addressed. The evidence shows that other late claims were accepted partly because of the difficulty of identifying which of the late claims were not related to the respondent's own inability to supply to meet the purchase orders, and partly because of a desire to avoid upsetting the purchasers concerned. The making of such an order, in the circumstances, would not be punitive: cp Australian Competition and Consumer Commission v 4WD Systems Pty Ltd [2003] FCA 850 at [214]. It will procure a process for a more alert and educated consideration about the nature of the representations contained in such a promotion and to ensure those representations are not misleading and deceptive.
69 In two respects, I consider the proposed order is too broad. First, it requires the compliance program to be for "the employees or other persons" involved in the respondent's business. I am uncertain about who the "other persons involved in its business" may be. I do not regard it as appropriate to make an order obliging the respondent to establish and implement a trade practices compliance program which extends to external consultants or contractors, or (as in this case) subcontractors to its contractors, generally. It is not clear how the respondent could routinely do that. Nor is there a sufficient basis for knowing whether the respondent, in its advertising campaigns, routinely uses the same contractors or agents or whether they are selected on a case by case basis. Nor is there a way of knowing whether those contractors or agents have their own trade practices compliance program.
70 Secondly, in my view, in the particular circumstances, the Trade Practices Compliance and Education/Training Program proposed by the applicant goes beyond what is appropriate. I have significantly modified its proposal to address more specifically what I regard as the shortcomings in the respondent which led to the contravening conduct. The program which the orders of the Court require is focused on establishing within the respondent a structure to ensure that its employees know of the relevant provisions of the TP Act and are educated about their significance when developing or managing the advertising and promotion of its products by Panasonic, and also about the respondent's dealing with consumer complaints about the accuracy of its advertising and promotion of its products. I do not consider the more sophisticated provisions sometimes included in such a program are necessary or appropriate having regard to the present circumstances, so I have not included the suggested clauses dealing with risk assessment or external review. Nor have I required the detailed level of upwards reporting within the respondent which it sometimes included, simply as a recognition of the sort of level, on the evidence, at which decisions are taken and approved within the respondent on such promotions as that which led to the contravention of s 52 of the TP Act.
71 In the circumstances, I also do not consider it is appropriate for the respondent to be required to do other than to confirm to the applicant that it has implemented a program in accordance with the order I propose to make. It is not necessary that the applicant have the opportunity to comment upon the steps which the respondent has taken. It is not clear that it seeks that role, or that it can or should be given that role. The respondent has the responsibility of complying with the order, and by reference to AS ISO 10002-2006 Customer Satisfaction - Guidelines for complaints handling in organisations, there is sufficient precision in what the order expects for the respondent's compliance to be assessed in the future if that were to become necessary. It follows also that it is not necessary, in my view, that the respondent should be required to provide to the applicant a copy of any documents it generates in compliance with the order. It is not apparent to me that there is any particular need for the applicant in the future to oversee the respondent's conduct of such a compliance program, or indeed that it can or should be given that function by the Court. If it does not have such a role, it does not need to see the detailed content of the program.
72 For those reasons, I will make the declaratory orders and probationary orders published with these reasons. The respondent should also pay the applicant its costs of the application.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.