Australian Competition and Consumer Commission v The Joystick Company Pty Ltd [2017] FCA 397

Australian Competition and Consumer Commission v The Joystick Company Pty Ltd [2017] FCA 397

The Court found that The Joystick Company Pty Ltd engaged in misleading or deceptive conduct and made false representations as to the composition and approval of e-cigarette products in contravention of the Australian Consumer Law, and that Mr McDonell was knowingly concerned in these contraventions. The agreed penalties ($50,000 for the company and $10,000 for Mr McDonell, with instalment arrangements) and compliance orders were appropriate in all the circumstances, taking into account the seriousness of the conduct, public health implications, the respondents' cooperation and financial positions, and the objectives of deterrence and public interest.

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent: The Joystick Company Pty Ltd (ACN 164 002 519); Second Respondent: Mr Alexander McDonell
Jurisdiction
Australia
Judgment Date
02 May 2017
Procedural Posture
Civil Penalty Proceeding / Penalty Hearing and Final Orders
Outcome
Orders made by consent. Declarations of contraventions, pecuniary penalties, compliance/training orders and costs order imposed in accordance with the parties’ agreement.
Legal Topics
Misleading and Deceptive Conduct, False or Misleading Representations, Product Representation, Pecuniary Penalties, Declarations, Compliance Orders
Competition and Consumer Law Misleading and Deceptive Conduct False or Misleading Representations Product Representation Pecuniary Penalties Declarations Compliance Orders

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Parties

Australian Competition and Consumer Commission

Applicant

The Joystick Company Pty Ltd (ACN 164 002 519)

First Respondent

Mr Alexander McDonell

Second Respondent

Procedural Posture

Civil Penalty Proceeding / Penalty Hearing and Final Orders

Legal Issues

  1. 1 Whether The Joystick Company Pty Ltd and Mr Alexander McDonell contravened ss 18, 29(1)(a), 29(1)(g), and 33 of the Australian Consumer Law by making false or misleading representations as to the health effects and benefits of e-cigarette products;
  2. 2 Whether agreed penalties and compliance orders are appropriate and within the permissible range under s 224 of the Australian Consumer Law.

Ratio Decidendi

The Court found that The Joystick Company Pty Ltd engaged in misleading or deceptive conduct and made false representations as to the composition and approval of e-cigarette products in contravention of the Australian Consumer Law, and that Mr McDonell was knowingly concerned in these contraventions. The agreed penalties ($50,000 for the company and $10,000 for Mr McDonell, with instalment arrangements) and compliance orders were appropriate in all the circumstances, taking into account the seriousness of the conduct, public health implications, the respondents' cooperation and financial positions, and the objectives of deterrence and public interest.

Court Disposition

Orders made by consent. Declarations of contraventions, pecuniary penalties, compliance/training orders and costs order imposed in accordance with the parties’ agreement.

Orders

  • Declarations that The Joystick Company Pty Ltd contravened ss 18, 29(1)(a), 29(1)(g), and 33 of the ACL and that Mr McDonell was knowingly concerned in those contraventions.
  • The Joystick Company Pty Ltd to pay a pecuniary penalty of $50,000 within 30 days.