Energizer Australia Pty Ltd v Procter and Gamble Australia Pty Ltd

In the case of Energizer Australia Pty Ltd v Procter and Gamble Australia Pty Ltd, the dispute centred on whether the respondent, Procter and Gamble Australia Pty Ltd, should be fined for breaching an interlocutory injunction issued by the Court. The injunction had been put in place to prevent the broadcast of a particular television commercial by the respondent. The respondent admitted that the commercial had been broadcast multiple times over a three-week period, amounting to 954 broadcasts on various television channels in several capital cities. The issue before the court was whether the breaches were wilful or merely accidental and whether a fine should be imposed.

The court examined the circumstances under which the breaches occurred. The respondent argued that the breaches were unintentional and due to a lack of diligence. The respondent had taken steps to cease further broadcasts of the commercial as soon as it became aware of the possibility of a breach. The court considered the respondent's genuine contrition and remorse, as well as the magnitude of the breach. The court also noted that the respondent was capable of paying any fine imposed.

The court concluded that while it had the power to impose a fine, it was also open to it to decide not to impose any fine at all. The court decided that a fine should be imposed, taking into account the circumstances of the case and the respondent's acknowledgment of the breach. The court ordered the respondent to pay a fine of $40,000 and to pay the applicant's costs on an indemnity basis. The court emphasised that the imposition of a fine was a serious matter and should be reserved for cases of wilful disobedience or reckless disregard of the court's orders. In this case, while the breaches were not wilful, the court considered it appropriate to impose a fine as a deterrent against future breaches.

The final orders of the court were that the respondent pay a fine of $40,000 within 21 days and pay the applicant's costs on an indemnity basis. This decision highlights the court's consideration of the nature of the breach and the respondent's actions in addressing the breach in determining whether to impose a fine and the appropriate amount.