Energizer Australia Pty Ltd v Procter & Gamble Australia Pty Ltd [2016] FCA 347

Energizer Australia Pty Ltd v Procter & Gamble Australia Pty Ltd [2016] FCA 347

Although the respondent's breach of the interlocutory injunction was not intentional and involved no contumacy, the broadcasts occurred because its employees failed to exercise reasonable diligence by not checking the unique key number for the television commercial. The breach was serious in magnitude, involving 954 broadcasts over 23 consecutive days across many channels, and was not merely casual or accidental in the relevant sense. A modest fine was warranted to vindicate the Court's authority and deter non-compliance, taking into account contrition, remedial steps, absence of prior contempt, lack of proven financial benefit and the indemnity costs burden.

Jurisdiction
Australia
Judgment Date
12 April 2016
Procedural Posture
Contempt of Court for Breach of Injunction / Judgment on Amended Originating Application Seeking Declaration of Contempt, Fine and Indemnity Costs
Outcome
The respondent was declared guilty of contempt, ordered to pay a fine of $40,000, and ordered to pay the applicant's costs on an indemnity basis.
Legal Topics
['breach of Injunction' 'civil Contempt' 'power to Impose Fine' 'wilful Disobedience' 'unintentional Breach' 'indemnity Costs' 'advertising']
['contempt of Court' 'civil Procedure' 'commercial and Corporations' 'regulator and Consumer Protection'] ['breach of Injunction' 'civil Contempt' 'power to Impose Fine' 'wilful Disobedience' 'unintentional Breach' 'indemnity Costs' 'advertising']

Case Brief

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Procedural Posture

Contempt of Court for Breach of Injunction / Judgment on Amended Originating Application Seeking Declaration of Contempt, Fine and Indemnity Costs

Legal Issues

  1. 1 ['Whether the respondent was guilty of contempt for causing the Ultra TVC to be broadcast in breach of an interlocutory injunction.' 'Whether the Court had power to impose a fine where the breach was unintentional and non-contumacious.' "Whether the respondent's breach was casual or accidental and unintentional, or resulted from lack of diligence sufficient to warrant a fine." 'What penalty and costs orders should be made.']

Ratio Decidendi

Although the respondent's breach of the interlocutory injunction was not intentional and involved no contumacy, the broadcasts occurred because its employees failed to exercise reasonable diligence by not checking the unique key number for the television commercial. The breach was serious in magnitude, involving 954 broadcasts over 23 consecutive days across many channels, and was not merely casual or accidental in the relevant sense. A modest fine was warranted to vindicate the Court's authority and deter non-compliance, taking into account contrition, remedial steps, absence of prior contempt, lack of proven financial benefit and the indemnity costs burden.

Court Disposition

The respondent was declared guilty of contempt, ordered to pay a fine of $40,000, and ordered to pay the applicant's costs on an indemnity basis.

Orders

  • ['The respondent is guilty of the acts of contempt set out in charges 1 to 23 of the statement of charge filed in this proceeding in that the respondent caused to be broadcast the television commercial for Duracell Ultra battery products containing the words "Australia\'s #1 Longest Lasting Alkaline Battery" 954...