Australian Competition and Consumer Commission v
Hercules Iron Pty Ltd  FCA 1182
Non-complying bunk beds, court orders, and the applicable
It is unusual for proceedings to be brought for contempt whether
civil, which is punishable by fines, or criminal, which is
punishable by imprisonment. In this case, the ACCC had obtained
orders against Hercules some months earlier. Hercules had supplied
bunk beds which did not comply with a mandatory product safety
standard AS/NZA 4220:1994 under Consumer Protection Notice No. 1 of
2003. Orders had been made prohibiting Hercules from supplying
non-compliant bunk beds for a period of three years.
These proceedings concerned three breaches of that injunction.
The question for the court was whether the breach was deliberate,
wilful disobedience of the orders. The court concluded that they
were and had regard to the fact that no evidence was provided of
the steps put in place to ensure compliance with the orders and
that non-complying bunks remained in the respondents'
warehouse. The court thought that the non-complying bunks simply
should not have been there or should have been identified in a
manner which prevented such a "mix up".
The ACCC sought fines of $10,000. The court had regard that
Hercules had shown some willingness to recall the offending
products and make amends to affected customers. In deciding the
appropriate penalty, the court provided a check list of factors to
be taken into account:
the person's personal circumstances;
nature and circumstances of the contempt;
effect of the contempt on the administration of justice;
the person's culpability;
need to deter the person and others from repeating contempt;
absence or presence of a prior conviction for contempt.
In the present case, the court thought that more than a nominal
penalty was appropriate for two reasons: specific deterrence and
general deterrence. In relation to specific deterrence, the court
noted that there was a history of evasion and non-compliance with
past orders Justice Gordon did not think it likely that Hercules
would comply with the orders in the future unless there was a
concrete penalty. With respect to general deterrence, Justice
Gordon noted that the Prescribed Standard addresses minimum safety
requirements for bunk beds and that beds not complying with these
requirements have a higher risk of collapsing or causing
In these circumstances, the court though that the fines
requested by the ACCC of $10,000 were necessary and appropriate in
light of all the circumstances. It also ordered that the ACCC's
costs be paid on an indemnity basis.
1. Lord Chesterfield
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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