Australian Competition and Consumer Commission v Dell Australia Pty Ltd (No 2)

The Australian Competition and Consumer Commission (ACCC) took proceedings against Dell Australia Pty Ltd (Dell) in the Federal Court, alleging breaches of the Australian Consumer Law (ACL) during a specified period. The Court found Dell had contravened sections 18 and 29(1)(i) of the ACL and ordered declarations, consumer redress, compliance measures, and corrective notices. The remaining issues were pecuniary penalties and costs. The ACCC and Dell proposed an agreed penalty of $10 million and a $250,000 contribution to ACCC costs. The primary objective of pecuniary penalties under section 224 of the ACL is deterrence, and the penalty must be sufficient to prevent the contravener and others from considering it an acceptable cost of business. The penalty should not exceed what is necessary for deterrence. The Court considered Dell’s cooperation, contrition, and improvements in its compliance program as mitigating factors, warranting a discount on the penalties. Given these factors, the parties agreed on a $10 million penalty, divided between two courses of conduct. The Court accepted this proposal, finding it appropriate for deterrence without exceeding what is necessary. Dell also agreed to contribute $250,000 to the ACCC’s costs.

The Court ordered Dell to pay a $10 million penalty for its ACL contraventions and a $250,000 contribution to the ACCC's costs. The proceeding was dismissed otherwise.