Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2)

The Australian Competition and Consumer Commission (ACCC) initiated proceedings against Allergy Pathway Pty Ltd (Allergy Pathway) and its director, Mr Keir, for contempt, alleging that they had breached undertakings given to the Court. The undertakings had required them not to make specific representations about their allergy testing and treatment services. The representations included claims that Allergy Pathway could accurately test for allergens, cure or eliminate allergies, and that their treatment was safe and low-risk. The ACCC argued that these statements had been published on Allergy Pathway's Facebook and Twitter pages, constituting a breach of the undertakings.

The primary legal issues the Court had to decide were whether the statements posted on Allergy Pathway's social media platforms by others constituted publication by the respondents, and what appropriate penalty should be imposed. The Court found that the statements did constitute publication by the respondents because they had control over their social media accounts and had not taken steps to prevent the publication of these claims. The Court also considered the nature and extent of the breach, the respondents' conduct, and the need for deterrence and vindication of the Court's authority.

The Court imposed a fine of $7500 on each respondent and ordered them to be restrained from making the specified representations for three years. Additionally, Allergy Pathway was required to publish corrective notices at its clinics, on its websites and social media pages, and to distribute corrective letters to its customers. The Court also ordered that the respondents pay the ACCC's costs of the proceedings on an indemnity basis. The Court's decision emphasised the importance of adhering to court undertakings and the consequences of non-compliance.