Australian Competition and Consumer Commission v Decathlon (Australia) Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 17 August 2021
• Neutral Citation: [2021] FCA 964
• Date: 17 August 2021

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Decathlon (Australia) Pty Ltd [2021] FCA 964

File number:	NSD 801 of 2020
Judgment of:	NICHOLAS J
Date of judgment:	17 August 2021
Catchwords:	CONSUMER LAW – pecuniary penalties – where respondent admits to contraventions of ss 18(1), 29(1)(a), 29(1)(g), 106(1) and 106(2) of the Australian Consumer Law – where contraventions relate to sale of non-compliant goods that breach relevant safety standards – where ACCC raised concerns over 12 months before sale of non-compliant goods halted – where parties agree on form of appropriate declarations and injunctive relief – assessment of appropriate pecuniary penalty
Legislation:	Australian Consumer Law ss 18(1), 29(1)(a), s 29(1)(g), 104(1), 106(1), 106(2), 224, 246 Competition and Consumer Act 2010 (Cth) ss 155(1)(a) and (b) Treasury Laws Amendment (2018 Measures No. 3) Act 2018 (Cth)
Cases cited:	ACCC v Dimmeys Stores Pty Ltd [2011] FCA 372 ACCC v EDirect Pty Ltd (in liq) (2012) 206 FCR 160 ACCC v EnergyAustralia Pty Ltd (2014) 234 FCR 343 ACCC v Marksun Australia Pty Ltd [2011] FCA 695 ACCC v Online Dealz Pty Ltd [2016] FCA 732 ACCC and Ozsales Pty Ltd [2016] FCA 1049 ACCC v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 ACCC v Robinson [2011] FCA 17 ACCC v Singtel Optus Pty Ltd (No 4) (2011) 282 ALR 246 ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640 ACCC v Woolworths Ltd [2016] FCA 44 Constructions, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461 Director of Consumer Affairs Victoria v Dimmeys Stores Pty Ltd (2013) 308 ALR 296 Singtel Optus Pty Ltd v ACCC (2012) 287 ALR 249 TPC v Mobil Oil Australia Ltd (1984) 4 FCR 296
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	78
Date of hearing:	20 April 2021
Counsel for the Applicant:	Ms R Withana
Solicitor for the Applicant:	Corrs Chambers Westgarth
Counsel for the Respondent:	Mr R Scruby SC with Ms J Buncle
Solicitor for the Respondent:	Addisons

ORDERS

		NSD 801 of 2020
BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	DECATHLON (AUSTRALIA) PTY LTD ACN 608 596 069 Respondent

order made by:	NICHOLAS J
DATE OF ORDER:	17 August 2021

THE COURT DECLARES THAT:

1. In the period 1 January 2016 to 15 December 2019 (“the Relevant Period”), the respondent, Decathlon (Australia) Pty Ltd (“Decathlon”), supplied and offered for supply in trade or commerce to consumers basketball rings and backboards:

(a) which were intended to be used, or were of a kind likely to be used, for personal, domestic or household use;

(b) which were not toy basketball rings or backboards for toy basketball rings; and

(c) in respect of which there was prescribed by s 104(1) of the Australian Consumer Law (“ACL”) a consumer goods safety standard, namely the Consumer Goods (Basketball Rings and Backboards) Safety Standard 2017 (“Basketball Rings and Backboards Standard”)

in circumstances where the goods did not comply with ss 9, 10, 11, 12, 13 or 14 of the Basketball Rings and Backboards Standard, by reason that:

(d) the goods were not accompanied by the prescribed written warnings, warning symbol or instructions for installation of the basketball ring or backboard for its safe use, in the prescribed forms; and

(e) in circumstances where the ring or backboard was not supplied as part of a portable basketball system, the goods were not accompanied by the prescribed instructions for installation of the basketball ring or backboard for its safe use;

thereby contravening:

(f) s 106(1) of the ACL by supplying the basketball rings and backboards; and

(g) s 106(2) of the ACL by offering the basketball rings and backboards for supply.

2. In the Relevant Period, Decathlon supplied and offered for supply to consumers in trade or commerce portable swimming pools:

(a) which were intended to be used, or were of a kind likely to be used, for personal, domestic or household use; and

(b) in respect of which there was prescribed by s 104(1) of the ACL a consumer goods safety standard, namely the Consumer Goods (Portable Swimming Pools) Safety Standard 2013 (“Portable Swimming Pools Standard”)

in circumstances where the goods did not comply with ss 6 or 7 of the Portable Swimming Pools Safety Standard, by reason that:

(c) the goods did not display a permanent warning message in the prescribed form in circumstances where the depth of the portable swimming pools was 300 mm or more;

(d) the retail packaging for the goods did not display a permanent warning message in the prescribed form in circumstances where the depth of the portable swimming pools was 300 mm or more;

(e) the goods did not display a permanent warning message in the prescribed form in circumstances where the depth of the portable swimming pools was less than 300 mm; and

(f) the retail packaging for the goods did not display a permanent warning message in the prescribed form in circumstances where the depth of the portable swimming pool was less than 300 mm

thereby contravening:

(g) s 106(1) of the ACL by supplying the portable swimming pools; and

(h) s 106(2) of the ACL by offering the portable swimming pools for supply.

3. In the Relevant Period, Decathlon supplied or offered for supply basketball rings and backboards at items 3 and 4 of the Identified Products in Part A of Schedule 1 of the agreed statement of facts (Exhibit A) with installation manual instructions accompanying these goods that did not strongly warn against fixing the ring or backboard to brickwork and advice to consult a structural engineer if there is any doubt about the safety or stability of the installation, and represented to consumers that the goods were of a standard or quality and had the performance characteristics, uses or benefits of being safe to affix to brickwork, when that was not the case, and thereby, in trade or commerce:

(a) engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 18(1) of the ACL;

(b) in connection with the supply or possible supply of those basketball rings and backboards, made false or misleading representations that those basketball rings and backboards:

(i) were of a particular standard, quality, grade or composition, in contravention of s 29(1)(a) of the ACL; and

(ii) had approval, performance characteristics, uses or benefits which they did not have, in contravention of s 29(1)(g) of the ACL.

4. In the Relevant Period, Decathlon supplied or offered for supply basketball rings and backboards items 1, 2 and 5 of the Identified Products in Part A and items. 1, 2, 3, 4 and 6 of the Equivalent Products in Part A of Schedule 1 of the agreed statement of facts (Exhibit A) with installation manuals and/or retail packaging accompanying these goods that did not strongly warn against fixing the ring or backboard to brickwork, and represented to consumers that the goods were of a standard or quality and had the performance characteristics, uses or benefits of being safe to affix to brickwork, when that was not the case, and thereby, in trade or commerce:

(a) engaged in conduct that was misleading or deceptive, or...