Australian Competition and Consumer Commission v DuluxGroup (Australia) Pty Limited (No 2)

The Australian Competition and Consumer Commission (ACCC) brought proceedings against DuluxGroup (Australia) Pty Limited for making misleading representations about the performance capabilities of its heat-reflective paints, InfraCool and Heat Reflect. The case was heard in the Federal Court of Australia, where the ACCC sought declarations that Dulux's representations were misleading and orders for the publication of notices, as well as pecuniary penalties. Dulux admitted that it did not have reasonable grounds for the representations it made and cooperated with the ACCC.

The court had to determine whether the proposed declarations and orders were appropriate, considering the agreed facts and the principles of consumer law. The court also had to assess the appropriate pecuniary penalty, taking into account the seriousness and extent of the offending, as well as deterrence. The court found that it was appropriate to make the declarations and orders as proposed by the parties. Regarding the penalty, the court followed the approach set out in Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited (2015) 327 ALR 540, considering the contravening conduct as two separate courses of conduct.

The court ordered Dulux to publish notices in The Australian newspaper and on its website, and to pay a pecuniary penalty of $400,000, along with the ACCC's costs of $150,000. The penalty took into account Dulux's cooperation with the ACCC and the seriousness of the offending. The court concluded that the penalty should be sufficient to deter Dulux and other companies from engaging in similar conduct in the future.