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[2018] FCA 1111
Federal Court of Australia
2018-07-19
Moshinsky J
Original judgment source is linked above.
Solicitor for the Applicant: Ms A Mapp of Consumer Affairs Victoria
BETWEEN: DIRECTOR OF CONSUMER AFFAIRS VICTORIA Applicant
AND: ORIGO & CO PTY LTD (ACN 140 019 656) (FORMERLY DAISO (AUSTRALIA) PTY LTD) Respondent
JUDGE: MOSHINSKY J DATE OF ORDER: 19 JULY 2018
Compliance Plan 17. Origo, by its servants or agents or otherwise, be restrained for a period of 3 years, in trade or commerce, in Australia, from carrying on a business of supplying, offering for supply, or having in its possession, in or for the purposes of trade or commerce, goods of the kind or class listed in Annexure A of this Order (and whether or not such supply, offer, or possession, is as part of, or incidental to, the carrying on of another business), unless Origo carries out (and continues to carry out) a compliance program in accordance with Annexure B of this Order. Destruction of seized goods 18. Pursuant to s 232(6)(d) of the ACL, or the ACL (Vic), the applicant be permitted to destroy and dispose of all contravening goods the subject of the declarations in paragraph 1 to 16 above (Contravening Products), which were seized by the applicant and any Contravening Products otherwise returned to Origo. 19. Origo pay the applicant the costs of and incidental to the destruction and disposal of the Contravening Products within seven days of receiving a written request by the applicant, quantifying costs of and any costs incidental to the destruction and disposal of the Contravening Products. Pecuniary penalties 20. Origo pay the State of Victoria a total pecuniary penalty of $355,000 in respect of the contraventions of ss 106 and 136 of the ACL (Vic) the subject of the declarations in paragraphs 1 to 16 above within 6 weeks from the date of this Order. Non-Punitive Publication Order 21. Origo cause to be published in a prominent and conspicuous place at each of its stores, at or near the customer entrance and exit, for a period of no less than one month from the date of this Order, an Important Public Notice in the form of Annexure C to this Order (Important Public Notice). Each such notice must: (a) be a minimum size of 29.7 cm in width by 42 cm in height (A3 size paper); (b) use a minimum type face of 12 point Times Roman or equivalent; and (c) be printed in full colour. 22. Origo cause to be published within 10 days from the date of this Order on its Instagram page "daisoau" an Important Public Notice. 23. Origo cause the Important Public Notice to be published on the Internet at the homepage of all websites which are owned, operated or maintained by or on behalf of Origo, including the website accessible via Uniform Resource Locator (URL) at the web address (URL) http://www.daiso.com.au/ and www.daisostore.com.au (Origo websites) (or if any such URL is replaced or changed, the Internet home page of the corresponding website), for a period of 6 months from the date of this Order, and use its best endeavours to ensure that: (a) the Important Public Notice is to be viewable by clicking through a "click-through" icon located on the Origo website; (b) the "click-through" icon referred to in the previous sub-paragraph is located in a central position on the page first accessed when the user opens to the home page of the Origo website; (c) the "click-through" icon contains the words "PRODUCT SAFETY - IMPORTANT NOTICE ORDERED BY FEDERAL COURT OF AUSTRALIA" (in capital letters and using a minimum type size of 16 point Times New Roman or equivalent), clearly and prominently in red on a contrasting background and the words "Click Here"; and (d) the Important Public Notice occupies the entire webpage which is accessed via the "click-through" icon referred to above. Refunds 24. Pursuant to s 232(6)(a) of the ACL or ACL (Vic), Origo pay a full refund to all persons returning goods (if any) that are Contravening Products. Notifications 25. Pursuant to s 232(1) of the ACL or ACL (Vic), Origo: (a) notify on a monthly basis for 4 months after publication of the Important Public Notices, an Officer designated by the Director of Consumer Affairs Victoria of the details of any Contravening Products returned to that company; and (b) securely store all such returned goods for collection (destruction and disposal) by the Officer designated by the Director of Consumer Affairs Victoria, as soon as is convenient after the 4 month period, referred to in paragraph 25(a) above, has expired. Costs 26. Origo pay a contribution to the applicant's costs in the fixed sum of $15,000 within 6 weeks from the date of this Order. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ANNEXURE A CLASSES OF KINDS OF CONSUMER GOODS 1 Aquatic Toys / Floatation Aids 2 Babies' Dummies with or without decorations and chains 3 Baby Walkers, Baby Bath Aids, and Children's Portable Folding Cots 4 Balloon Blowing Kits 5 Basketball Rings and Backboards 6 Bean Bags and Inflatable Toys, Novelties and Furniture containing Beads 7 Blinds, Curtains and Window Fittings 8 Bunk Beds 9 Clothing and Textiles that are required to have warning labels attached 10 Child Restraints for use in Motor Vehicles 11 Cosmetics and Toiletries 12 Disposable Cigarette Lighters 13 Elastic Luggage Straps 14 Exercise Cycles 15 Hot Water Bottles 16 Household Cots 17 Finger paints 18 Motor Vehicle Recovery Straps 19 Motorcycle Helmets 20 Moveable Soccer Goals 21 Nightwear for Children 22 Pedal Bicycles and Bicycle Helmets 23 Portable Aerosol Fire Extinguishers and Portable Non-Aerosol Fire Extinguishers 24 Prams and Strollers 25 Reduced Fire Risk Cigarettes, Novelty Cigarettes, and Smokeless Tobacco Products 26 Sunglasses and Fashion Spectacles 27 Swimming and Flotation Aids for water familiarisation and swimming tuition 28 Toys for children up to and including 36 months of age, Children's Toys containing Magnets, and Projectile Toys 29 Treadmills 30 Trolley Jacks, Vehicle Jacks, Vehicle Support Stands, and Portable Ramps for Motor Vehicles 31 Candles 32 Candle Holders 33 Fire Footbags and Sky Lanterns 34 Gas Masks 35 Glucomannan in tablet form 36 Mini Jelly Cups 37 Miniature Motorbikes 38 Tongue Studs 39 Pools and Spas 40 Tinted Headlight Covers 41 Toothpaste 42 Toy-like Novelty Cigarette Lighters 43 Knives or Cutters in Stationery Sets 44 Yo-Yo Water Balls
ANNEXURE B PRODUCT SAFETY COMPLIANCE PROGRAM ORIGO & CO. PTY. LTD. [ACN 140 019 656] Formerly Daiso (Australia) Pty Ltd (ORIGO) The respondent, Origo, will carry out a Product Safety Compliance Program (Compliance Program) that complies with International Standard AS/ISO 19600:2015 and each of the following requirements: Appointments
(a) In the event the Director has sufficient reason to believe that the Compliance Program is not being implemented effectively, Origo shall, if requested by the Director, at their expense, cause a review of the Compliance Program elements (the Review) to be carried out in accordance with each of the following requirements: (b) Scope of the Review - Origo shall use its best endeavours to ensure that the Review: (i) verifies that Origo has in place a Compliance Program that complies with the requirements of this Annexure and is suitable for its size and structure; (ii) involves the preparation of a Compliance Program Review Report (Review Report) and opinions detailed at point 6 below. (c) Independence of Reviewer - Origo shall ensure that the Review is carried out by a suitably qualified, independent compliance professional with expertise in competition and consumer law (the Reviewer). The Reviewer will qualify as independent on the basis that he or she: (i) did not design or implement the Compliance Program; (ii) is not a present or past staff member or director of Origo; (iii) has no significant shareholding or other interests in Origo. (d) Evidence - Origo shall use its best endeavours to ensure that the Review is able to be conducted on the basis that the Reviewer has access to all relevant sources of information in Origo's possession or control, including without limitation documents created by Origo's consultants, legal practitioners and accountants for use in Origo's Compliance Program. (e) Origo shall ensure that the Review is completed within 3 months of a written request from the Director. Reviewer Reports 6. (a) Origo shall use its best endeavours to ensure that the Reviewer sets out the findings of the Review in a Review Report, which will provide particular and specific information regarding the scope of the Review and the effectiveness of the Compliance Program, including: (i) details of the evidence gathered and examined during the Review; (ii) the name and relevant experience of the person appointed as Origo's Compliance Officer; (iii) the Reviewer's opinion on whether the Origo has in place effective staff training, that complies with the requirements of this Annexure; and (iv) actions recommended by the Reviewer to ensure the continuing effectiveness of the Origo's Compliance Program. (b) Origo shall ensure that any Review Report is completed and provided to Origo within 3 months of completion of the Review. (c) Origo will cause the Review Report to be provided to the Director within 14 days of its receipt from the Reviewer. (d) Origo shall implement promptly and with due diligence any recommendations made by the Reviewer or required by the Director that are reasonably necessary to ensure that Origo maintains and continues to develop the Compliance Program elements in accordance with the requirements of this Annexure. ANNEXURE C
Introduction 1 The respondent, Origo & Co Pty Ltd (formerly Daiso (Australia) Pty Ltd) (Origo), carries on a business of marketing and selling consumer goods. It sells goods under licence from Daiso Industries Co Limited (Daiso Japan), a company based in Hiroshima, Japan, but is not related to that company. Relevantly for present purposes, Origo sells goods in the following six product categories: (a) projectile toys; (b) toys for children up to and including 36 months of age; (c) luggage straps; (d) cosmetics; (e) sunglasses; and (f) sunscreen products. 2 This proceeding, brought by the Director of Consumer Affairs Victoria (the Director), principally concerns contraventions of product safety and product information standards. It is similar in subject matter to an earlier proceeding brought by the Director against Daiso Industries (Australia) Pty Ltd: see Director of Consumer Affairs Victoria v Daiso Industries (Australia) Pty Ltd [2017] FCA 683 (Daiso No 1); Director of Consumer Affairs Victoria v Daiso Industries (Australia) Pty Ltd (No 2) [2017] FCA 720; and Director of Consumer Affairs Victoria v Daiso Industries (Australia) Pty Ltd (No 3) [2017] FCA 1488 (Daiso No 3). The respondent to that proceeding is a subsidiary of Daiso Japan. As noted, the respondent in the present case is not related to Daiso Japan. Nor is it related to Daiso Industries (Australia) Pty Ltd. 3 The Director's allegations in the present proceeding are, in summary, that: (a) Origo contravened s 106 of the Australian Consumer Law, being Sch 2 to the Competition and Consumer Act 2010 (Cth) (the ACL) and the Australian Consumer Law (Victoria), being the Australian Consumer Law text applied by the Australian Consumer Law and Fair Trading Act 2012 (Vic) (the ACL (Vic)) in relation to each of the product categories referred to in 1, (b), (c) and (e) above; (b) Origo contravened s 136 of the ACL and the ACL (Vic) in respect of cosmetics; and (c) Origo contravened ss 18 and 29(1) of the ACL and the ACL (Vic) in relation to sunscreen products. 4 The Director seeks: declarations; injunctive relief; pecuniary penalties; a non-punitive publication order or adverse publicity order; and costs. 5 Origo has admitted liability in respect of the alleged contraventions and the parties have prepared a statement of agreed facts (SOAF). A copy of the SOAF (omitting footnotes and annexures) is annexed to these reasons. In addition, a number of affidavits have been filed. These provide further detail as to matters covered in the SOAF. The parties have also agreed a form of proposed declarations and a form of proposed orders (together, the Minute of Proposed Orders). In summary, the parties jointly propose that the Court make declarations with respect to each of the alleged contraventions and that the Court make orders to the effect that: (a) for a period of three years, Origo be restrained from carrying on a business of supplying, offering for supply, or having in its possession, goods of the kind or class listed in Annexure A to the Minute of Proposed Orders unless Origo continues to carry out a compliance program in accordance with Annexure B to the Minute of Proposed Orders; (b) the Director be permitted to destroy and dispose of all contravening goods that were seized by the Director; (c) Origo pay the costs of and incidental to the destruction and disposal referred to in paragraph (b) above; (d) Origo pay a pecuniary penalty of $355,000 in respect of the contraventions of ss 106 and 136 of the ACL (Vic); (e) Origo cause to be published in various specified ways a public notice in the form of Annexure C to the Minute of Proposed Orders; (f) Origo pay a full refund to all persons returning any contravening goods; (g) Origo pay a contribution to the Director's costs of the proceeding, in the amount of $15,000. 6 For the reasons that follow, I consider it appropriate to make declarations and orders substantially in the form of the Minute of Proposed Orders. In particular, I consider the proposed pecuniary penalty of $355,000 to be an appropriate penalty in the circumstances.
Applicable principles 7 As I noted in Daiso (No 1) at [5], the Court has jurisdiction to deal with the Director's claims arising under the ACL: see s 138(1) of the Competition and Consumer Act and s 39B(1A)(c) of the Judiciary Act 1903 (Cth). Insofar as the Director brings claims under the ACL (Vic), it has been accepted that, in circumstances such as this, such claims are within the Court's accrued jurisdiction: see Walker v Sell (2016) 245 FCR 308 at [83]-[85] per Bromwich J; Director of Consumer Affairs Victoria v Gibson [2017] FCA 240 at [1] per Mortimer J. However, the expression "accrued jurisdiction" is best avoided: see Rizeq v Western Australia (2017) 344 ALR 421 at [55]-[56] per Bell, Gageler, Keane, Nettle and Gordon JJ. 8 The applicable principles as regards the making of orders by agreement and as regards declarations are well established. They were summarised by Gordon J in Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 (Coles) at [70]-[79] as follows: 2.3.1 Orders sought by agreement … 70 The applicable principles are well established. First, there is a well-recognised public interest in the settlement of cases under the Act: NW Frozen Foods Pty Ltd v Australian Competition & Consumer Commission (1996) 71 FCR 285 at 291. Second, the orders proposed by agreement of the parties must be not contrary to the public interest and at least consistent with it: Australian Competition & Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79 at [18]. 71 Third, when deciding whether to make orders that are consented to by the parties, the Court must be satisfied that it has the power to make the orders proposed and that the orders are appropriate: Real Estate Institute at [17] and [20] and Australian Competition & Consumer Commission v Virgin Mobile Australia Pty Ltd (No 2) [2002] FCA 1548 at [1]. Parties cannot by consent confer power to make orders that the Court otherwise lacks the power to make: Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 163. 72 Fourth, once the Court is satisfied that orders are within power and appropriate, it should exercise a degree of restraint when scrutinising the proposed settlement terms, particularly where both parties are legally represented and able to understand and evaluate the desirability of the settlement: Australian Competition & Consumer Commission v Woolworths (South Australia) Pty Ltd (Trading as Mac's Liquor) [2003] FCA 530 at [21]; Australian Competition & Consumer Commission v Target Australia Pty Ltd [2001] FCA 1326 at [24]; Real Estate Institute at [20]-[21]; Australian Competition & Consumer Commission v Econovite Pty Ltd [2003] FCA 964 at [11] and [22] and Australian Competition & Consumer Commission v The Construction, Forestry, Mining and Energy Union [2007] FCA 1370 at [4]. 73 Finally, in deciding whether agreed orders conform with legal principle, the Court is entitled to treat the consent of Coles as an admission of all facts necessary or appropriate to the granting of the relief sought against it: Thomson Australian Holdings at 164. 2.3.2 Declarations 74 The Court has a wide discretionary power to make declarations under s 21 of the Federal Court Act: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-8; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-2 and Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 at 99. 75 Where a declaration is sought with the consent of the parties, the Court's discretion is not supplanted, but nor will the Court refuse to give effect to terms of settlement by refusing to make orders where they are within the Court's jurisdiction and are otherwise unobjectionable: see, for example, Econovite at [11]. 76 However, before making declarations, three requirements should be satisfied: (1) The question must be a real and not a hypothetical or theoretical one; (2) The applicant must have a real interest in raising it; and (3) There must be a proper contradictor: Forster v Jododex at 437-8. 77 In this proceeding, these requirements are satisfied. The proposed declarations relate to conduct that contravenes the ACL and the matters in issue have been identified and particularised by the parties with precision: Australian Competition & Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378 at [35]. The proposed declarations contain sufficient indication of how and why the relevant conduct is a contravention of the ACL: BMW Australia Ltd v Australian Competition & Consumer Commission [2004] FCAFC 167 at [35]. 78 It is in the public interest for the ACCC to seek to have the declarations made and for the declarations to be made (see the factors outlined in ACCC v CFMEU at [6]). There is a significant legal controversy in this case which is being resolved. The ACCC, as a public regulator under the ACL, has a genuine interest in seeking the declaratory relief and Coles is a proper contradictor because it has contravened the ACL and is the subject of the declarations. Coles has an interest in opposing the making of them: MSY Technology at [30]. No less importantly, the declarations sought are appropriate because they serve to record the Court's disapproval of the contravening conduct, vindicate the ACCC's claim that Coles contravened the ACL, assist the ACCC to carry out the duties conferred upon it by the Act (including the ACL) in relation to other similar conduct, inform the public of the harm arising from Coles' contravening conduct and deter other corporations from contravening the ACL. 79 Finally, the facts and admissions in Annexure 1 provide a sufficient factual foundation for the making of the declarations: s 191 of the Evidence Act; Australian Competition & Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665 at [57]-[59] endorsed by the Full Court in Australian Competition & Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513 at [92]; Hadgkiss v Aldin (No 2) [2007] FCA 2069 at [21]-[22]; Secretary, Department of Health & Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [77]-[79] and Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543. 9 In Daiso (No 3), I discussed the applicable principles relating to the imposition of pecuniary penalties. The following discussion of the applicable principles is largely based on the discussion in Daiso (No 3). 10 In Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 (FWBII), the High Court held that, in the context of civil penalty provisions, it was open to the Court to receive submissions, including joint submissions, as to an appropriate penalty. French CJ, Kiefel, Bell, Nettle and Gordon JJ (with whom Keane J agreed) stated at [46] that there is "an important public policy involved in promoting predictability of outcome in civil penalty proceedings" and that "the practice of receiving and, if appropriate, accepting agreed penalty submissions increases the predictability of outcome for regulators and wrongdoers". Their Honours stated that, as was recognised in Trade Practices Commission v Allied Mills Industries Pty Ltd (No 5) (1981) 60 FLR 38; 37 ALR 256 and determined in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 (NW Frozen Foods), "such predictability of outcome encourages corporations to acknowledge contraventions, which, in turn, assists in avoiding lengthy and complex litigation and thus tends to free the courts to deal with other matters and to free investigating officers to turn to other areas of investigation that await their attention". 11 Their Honours stated, at [57], that in civil proceedings there is generally very considerable scope for the parties to agree on the facts and their consequences; and that there "is also very considerable scope for them to agree upon the appropriate remedy and for the court to be persuaded that it is an appropriate remedy". In relation to civil penalty proceedings, their Honours stated at [58]: Subject to the court being sufficiently persuaded of the accuracy of the parties' agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and, for the reasons identified in Allied Mills, highly desirable in practice for the court to accept the parties' proposal and therefore impose the proposed penalty. (Footnote omitted.) 12 Their Honours in FWBII also made observations, at [60]-[61], regarding submissions by a regulator in such a context. 13 It follows from the above that the questions to be determined in the present case are: first, whether the Court is sufficiently persuaded of the accuracy of the parties' agreement as to facts and consequences; and secondly, whether the penalty that the parties propose is an appropriate remedy in the circumstances thus revealed. 14 In the present case, insofar as the proceeding involves an application by the Director for the imposition of a pecuniary penalty, the application is made under s 228(1) of the ACL (Vic). This provides that the regulator may institute a proceeding in a court for the recovery on behalf of the Commonwealth, a State or a Territory, as the case may be, of a pecuniary penalty referred to in s 224. Section 10(1) of the Australian Consumer Law and Fair Trading Act 2012 (Vic) (the Victorian Act) provides that, in the ACL (Vic), "regulator" means the Director. Section 10(2) of that Act provides that, for the purposes of the application of the ACL (Vic), "court" has the meaning given in s 223 of the Victorian Act. Section 223(1) of the Victorian Act provides that, subject to certain provisions (one of which is s 224), in the ACL (Vic), "court" means the Supreme Court, the County Court, the Magistrates' Court and VCAT. Section 224 of the Victorian Act provides that, subject to s 223, VCAT "or any court of competent jurisdiction" may hear and determine a cause of action arising under any provision of the ACL (Vic). I proceed on the basis that this Court is such a court. I note that pecuniary penalties have been imposed by this Court in other cases brought by the Director in like circumstances: see Director of Consumer Affairs Victoria v Hocking Stuart (Richmond) Pty Ltd (No 2) [2016] FCA 1435; and Director of Consumer Affairs Victoria v Gibson (No 3) [2017] FCA 1148. Neither party in the present case suggested otherwise. 15 Section 224(2) of the ACL (Vic) sets out certain mandatory considerations relating to the imposition of a pecuniary penalty. Section 224(2) provides: (2) In determining the appropriate pecuniary penalty, the court must have regard to all relevant matters including: (a) the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; and (b) the circumstances in which the act or omission took place; and (c) whether the person has previously been found by a court in proceedings under Chapter 4 or this Part to have engaged in any similar conduct. 16 The principles applicable to the discretion to impose pecuniary penalties have been discussed in many cases including the following authorities: Trade Practices Commission v CSR Ltd [1991] ATPR 41-076; [1990] FCA 762; Australian Competition and Consumer Commission v Kokos International Pty Ltd (No 2) [2008] ATPR 42-212; [2008] FCA 5; NW Frozen Foods; Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249 (Singtel Optus); Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 (TPG); FWBII; and Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25. (See also Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] ATPR 42-557; [2017] FCAFC 159 (Cement Australia) at [569].) In these circumstances, it is unnecessary to set out the principles, which are well-established, in any detail. 17 It is convenient, nevertheless, to set out the following list of relevant factors from the judgment of French J (as his Honour then was) in Trade Practices Commission v CSR Ltd at 52,152-52,153: 1. The nature and extent of the contravening conduct. 2. The amount of loss or damage caused [by the contravening conduct]. 3. The circumstances in which the conduct took place. 4. The size of the contravening company. 5. The degree of power it has, as evidenced by its market share and ease of entry into the market. 6. The deliberateness of the contravention and the period over which it extended. 7. Whether the contravention arose out of the conduct of senior management or at a lower level. 8. Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention. 9. Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. 18 In FWBII, French CJ, Kiefel, Bell, Nettle and Gordon JJ explained the purpose of a civil penalty as follows at [55]: … whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance: "Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act] … The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act." (Footnotes omitted.) 19 In TPG at [64], French CJ, Crennan, Bell and Keane JJ endorsed the observation of the Full Court in Singtel Optus that the Court, in fixing a penalty, must make it clear to the contravenor and the market that the cost of courting a risk of contravention cannot be regarded as an acceptable cost of doing business. 20 In relation to the course of conduct principle, I refer to Cement Australia at [421]-[426] and Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73 at [226]-[236].
Declarations 21 The Court has the power to make the declarations proposed: Federal Court of Australia Act 1976 (Cth), s 21. Origo has admitted the relevant contraventions in the SOAF and by its consent to the Minutes of Proposed Orders. The Court is entitled to treat this as an admission of all facts necessary or appropriate to the granting of the relief sought against Origo. Further, the requirements for the making of declarations referred to by Gordon J in Coles, set out above, are satisfied. The proposed declarations relate to conduct that contravenes the ACL and the ACL (Vic) and the matters in issue have been identified and particularised by the parties with precision. The proposed declarations contain sufficient indication of how and why the relevant conduct contravened the legislation. 22 It is in the public interest for the Director to seek to have the declarations made and for the declarations to be made. There is a significant legal controversy that is being resolved. The Director, as a public regulator, has a genuine interest in seeking declaratory relief and Origo is a proper contradictor. Additionally, the declarations sought are appropriate because they serve to record the Court's disapproval of the contravening conduct, vindicate the Director's claim that Origo contravened the legislation, assist the Director in carrying out his regulatory duties in the future, inform the public of the contravening conduct, and deter other corporations from contravening the legislation. 23 Accordingly, I will make declarations substantially in the terms proposed by the parties.
Pecuniary penalty 24 The facts and circumstances of Origo's contraventions of ss 106 and 136 of the ACL (Vic) are set out in the SOAF. (As noted above, penalties are sought only in respect of the contraventions of those provisions, not s 29(1) of the ACL (Vic).) I accept that the facts and circumstances are as set out in that document. 25 I will first consider the nature and extent of the relevant acts and omissions, being part of the first mandatory consideration in s 224(2) of the ACL (Vic). 26 In or about April 2011, April 2012, February 2013, November 2013, March 2015 and July 2015, Origo displayed and offered for sale to customers, products from one or more categories of consumer goods in breach of an applicable mandatory safety standard and/or information standard, as set out in the table in [6] of the SOAF. 27 Details of the ways in which the products failed to comply with the applicable standards are set out in [11] to [17] of the SOAF. 28 During the period 2011 to 2017, Origo sold 15,295 items of non-compliant products. The total profit generated from these products was $24,030. The selling price of each product was $2.55 (exclusive of GST) and the cost of goods was between $0.99 and $1.25, depending on the fluctuation in the JPY/AUD exchange rate. 29 The contraventions occurred over a period of some years. 30 The contraventions are serious. Each of the standards contravened exists to mitigate risks to consumers' safety. The Court is entitled to assume that the safety standards were put in place to address actual or anticipated harm or damage. The nature of the harm and damage is expressed in the following ways in explanatory material published by ACL regulators: (a) projectile toys - risk of injury by choking, eye injuries and flesh wounds; (b) toys for children up to and including 36 months of age - risk of injury by choking on unsafe small toys and small parts; choking might cause serious injury or death; (c) elastic luggage straps - risk of serious injuries to eyes, face and body if they recoil during use; (d) cosmetics - ingredient labels that are missing or inaccurate can mislead consumers in their purchasing decisions and expose consumers to ingredients that may cause allergic reactions; such allergic reactions could be very harmful and in some cases may lead to death; and (e) sunglasses - incorrect use and labelling can cause eye injuries or impaired vision. 31 It is not suggested by the Director that Origo's contraventions are aggravated by any resulting loss or damage (being the other aspect of the first mandatory consideration). 32 The second mandatory consideration in s 224(2) of the ACL (Vic) is the circumstances in which the contraventions took place. The circumstances have been described above and are described more generally in the SOAF. In addition, I note the following facts and matters. 33 Origo was incorporated in 2009 as a vehicle for the operation of a business in Australia selling products supplied by Daiso Japan. 34 The goods sold by Origo are sold under licence from Daiso Japan. They are all developed and manufactured by Daiso Japan. 35 Origo is required to purchase products directly from Daiso Japan using Daiso Japan's ordering system. 36 Origo pays Daiso Japan a royalty fee, calculated as 1% of its net sales, for use of Daiso Japan's business model and intellectual property. 37 However, neither Daiso Japan nor Daiso Industries (Australia) Pty Ltd has any connection with Origo in relation to management, shareholding or its compliance with Australian law including its compliance program. 38 In relation to the third mandatory consideration, Origo has not previously been found by a court in proceedings under Ch 4 or Pt 5-2 of the ACL (Vic) to have engaged in any similar conduct. 39 I turn now to refer to other relevant matters. 40 The maximum penalty for each contravention of s 106 or 136 of the ACL (Vic) is $1.1 million. 41 The contravening conduct should be viewed as five courses of conduct, one in relation to each product group relevant to the contraventions of ss 106 and 136 of the ACL (Vic). 42 Prior to April 2011, Origo did not have any form of compliance management system in place to ensure compliance with Australian mandatory standards. There was no assessment of products to determine whether they complied with Australian mandatory standards. 43 Origo took steps in 2011 towards compliance with the standards. Origo acknowledges that, with hindsight, the system it implemented in 2011 did not achieve its compliance objectives. 44 During the years 2012 and 2013, Origo took further steps towards meeting the requirements of the standards. Further steps were taken in 2014, including providing a copy of its compliance program documentation to Consumer Affairs Victoria (CAV) and inviting it to provide suggestions. 45 An independent product safety expert was not consulted at that time, principally because Origo did not appreciate that such people existed. Origo also misunderstood CAV's role. Origo genuinely, but mistakenly, believed that CAV was providing it with advice in relation to what it needed to do to be compliant in respect of its product safety obligations. 46 Origo now appreciates that this was incorrect and understands that it is responsible for ensuring that the products it sells comply with product safety laws. 47 Origo ultimately retained an independent compliance system consultant on or around 5 September 2017 to review Origo's compliance program and to provide ongoing compliance training. 48 Origo now has an extensive compliance program in place, as described in [94] of the SOAF. 49 The SOAF indicates that Origo did take steps to address its compliance issues, but these were inadequate. This is not a case where it failed to take any steps to address these issues. 50 It is admitted by Origo's witnesses that, at a senior management level, they knew about the existence of mandatory standards, but not in particular detail. Origo relied upon an assumption that the products supplied by Daiso Japan would be compliant with Australian mandatory standards and senior management did not appreciate that Origo should have a product safety compliance program. 51 The market in which Origo's business operates requires that its attention and the attention of its staff be focussed on ongoing compliance. Origo sells very large volumes of inexpensive products selected which are not specifically designed or manufactured to meet Australian mandatory product safety and information standards. It has a large proportion of casual staff, whose participation in compliance is needed. For this reason, in particular, external supervision of Origo's compliance is required. 52 In relation to Origo's size and financial position, I would describe Origo as a small to medium size business. 53 Origo's repeated contraventions were not deliberate, but they were foreseeable in circumstances were Origo lacked a proactive compliance culture. 54 Origo was co-operative with CAV at the inspections and in relation to follow up correspondence from CAV, including face-to-face engagement. 55 Origo has co-operated with the Director, including by way of the admissions and agreeing to the SOAF. 56 Taking these facts and matters into account, I consider the pecuniary penalty proposed by the parties, namely $355,000, to be an appropriate penalty. In my view, it reflects the seriousness of the contraventions of ss 106 and 136 of the ACL (Vic) that are the subject of the declarations and achieves the object of deterrence (both specific and general). It is consistent with the conduct being viewed as five courses of conduct, and appropriately reflects considerations of totality.
Other orders 57 In relation to the other proposed orders, I consider there to be a proper basis to make orders substantially in the terms proposed by the parties. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.
Associate: Dated: 14 August 2018 STATEMENT OF AGREED FACTS Preliminary 1. This Statement of Agreed Facts is agreed, as between the Applicant and the Respondent, for the purposes of s 191 of the Evidence Act 1995 (Cth). 2. Defined terms and abbreviations used in this Statement of Agreed Facts are set out in Table 1 [Not reproduced]. 3. This Statement of Agreed Facts is not intended to prevent parties from adducing evidence that is not consistent with the Statement of Agreed Facts, or prevent parties from making submissions as to the relevance of the facts set out in this Statement to the pecuniary penalty that should be awarded against the Respondent. Material Facts 4. The Applicant is and was, at all material times, a public official whose office is established by s 107 of the ACLFTA. In that capacity, the Director is "another person" within the meaning of s 232 of the ACL and is authorised by ss 10(1), 109 and 110(1) of the CCA and ss 2, 228, 232, 246 and 247 of the ACL (Vic) to bring this proceeding. 5. Origo & Co Pty Ltd (Origo) (formerly known as Daiso (Australia) Pty Ltd) was, at all material times, incorporated on 15 October 2009 and registered in Victoria with the number ACN 140 019 656. It has, since that time, carried on business operating retail stores in Victoria and New South Wales supplying a variety of consumer goods the subject of product safety laws, standards or ban orders. Origo possessing, controlling and offering for sale, relevant consumer goods in its warehouse and department stores 6. In or about April 2011, April 2012, February 2013, November 2013, March 2015 and July 2015, Origo displayed and offered for sale to customers, products from one or more categories of consumer goods in breach of an applicable mandatory safety standard and/or information standard. 7. In or about April 2017, Origo displayed and offered for sale to customers, products from one or more categories of consumer goods in breach of an applicable mandatory safety standard and/or information standards. In total the following number of different consumer goods were seized and/or purchased: Date Store Toys under 36 Months and squeeze toys for children under 18 months 10 April 2017 Bourke Street (Midtown) 246 Bourke St Melbourne 4 11 April 2017 Victoria Gardens 620 Victoria St Richmond (relocated from Hive Shopping Centre, 313 Victoria Street, Abbotsford) 6 Totals: 10
Director of Consumer Affairs Victoria
Origo & Co Pty Ltd
[1990] FCA 762
(2016) 340 ALR 25
(2013) 250 CLR 640
(2015) 258 CLR 482
(1996) 71 FCR 285
(2017) 344 ALR 421
(2012) 287 ALR 249
(1981) 60 FLR 38
(2016) 245 FCR 308
(1999) 161 ALR 79
(1981) 148 CLR 150
(1972) 127 CLR 421
(1992) 175 CLR 564
(1993) 41 FCR 89
(2012) 201 FCR 378
(2006) 236 ALR 665
(2007) 161 FCR 513
(2007) 158 FCR 543