admitted contraventions of Schedule 2 of the Competition and Consumer Act 2010 (Cth)
products posing a high risk to safety of children
Quick Take
1There is no principle requiring that modest direct profit from contravening conduct be treated as a critical or significant factor constraining penalty quantum; where conduct is objectively very serious and poses grave safety risks, the appropriate penalty need not bear any linear or mathematical relationship to the profit earned from the contravention (applying viagogo AG v Australian Competition and Consumer Commission [2022] FCAFC 87).
2Previous penalty decisions, particularly agreed penalties, are of very limited utility as comparables in the penalty-setting exercise because agreed penalties are products of negotiation influenced by unknowable factors, and the constellation of circumstances in each case is inevitably different (applying NW Frozen Foods and Yazaki Corporation).
3A complaint that the primary judge gave insufficient weight to a particular factor in the process of instinctive synthesis does not constitute a House v R error; the appellant must identify an error of principle, an error of fact, regard to irrelevant considerations, or disregard of material considerations, or demonstrate that the result is manifestly excessive.
