mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 ; (2005) 215 ALR 301
Outcome: cited
parties also recognise that a principal object of a penalty under s 76 is deterrence ( NW Frozen Foods ). As elaborated, the concept of deterrence is to deter repetition by the contravener and by others who might be tempted to contravene the Act ( TPC v CSR at 52,125 per French J), or to deter others who might be tempted to think that contravention would be of benefit and detection would lead merely to a compliance program for the future ( NW Frozen Foods at 294 295 per Burchett and Kiefel JJ). The need to achieve general deterrence as well as specific deterrence means that a party's capacity to pay must be weighed against the need to impose a sum which members of the public will recognise as significant and proportionate to the seriousness of the contravention ( Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 ; (2005) 215 ALR 301 at [39] per Goldberg J).
Case: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 ; (1999) 161 ALR 79
Outcome: considered
note also that, as French J said in Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 ; (1999) 161 ALR 79 at [18] , it is not sufficient, in making a consent order, that it is within the power of the Court to make the order nor that the parties have privately agreed as to the proposed order. The Court is not merely giving effect to the wishes of the parties. It is exercising a public function and must have regard to the public interest in doing so. As to the specific matters relevant in the present case, the parties have made submissions on: the nature and extent of the contravening conduct; the amount of loss or damage caused; the circumstances in which the conduct took place; similar conduct in the past whether the contravener has previously been found by the Court to have engaged in similar conduct; the size of the contravening company; the degree of power the contravening company has, as evidenced by its market share and ease of entry into the market; the deliberateness of the contravention and the period over which it extended; whether the contravention arose out of conduct of senior management or at a lower level; whether the company has a corporate culture conducive to compliance with the Code, as evidenced by compliance programs and corrective measures in response to an acknowledged contravention; whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Code in relation to the contravention; the financial position of the respondents; the deterrent effect of the proposed penalty; and totality and parity. Application of the principles The nature and extent of the contravening conduct The Understanding was reached at the AGM of the AKA, a sporting association whose members are kart racing associations based in NSW and the ACT. Mr Erdmann and Mr Whiting participated in a discussion amongst the representatives of the AKA clubs in attendance at the AGM, that discussion leading to the motion being proposed. The members voted and passed the Resolution which gave rise to the understanding. The understanding was given effect to on three occasions when Prokart received quotes from the AKA regarding the hire of kart circuits on which to hold its race series. The conduct ceased once the AKA became aware of the ACCC investigation and the possible contravention of the Code, which was less than three months after the Resolution was passed. The Resolution was subsequently revoked. The amount of loss or damage caused
Case: Australian Competition and Consumer Commission v White Top Taxis Ltd [2009] FCA 88 ; (2009) 253 ALR 449
Outcome: cited
the present proceedings concern contraventions of the Code only, the Court has jurisdiction under s 39B(1A)(a) of the Judiciary Act 1903 (Cth) which confers original jurisdiction on the Federal Court in proceedings where the Commonwealth seeks an injunction or declaration (similarly to Australian Competition and Consumer Commission v White Top Taxis Ltd [2009] FCA 88 ; (2009) 253 ALR 449). The principles for assessing penalty under the Code are the same as under the TPA ( White Top Taxis at [20] per Finkelstein J).
Case: Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10 
Outcome: cited
AKA, Wagga Kart Club, Newcastle Kart Club and Manning Valley Kart Club admit that they made an arrangement or arrived at an understanding in contravention of s 45(2)(a)(i) and (ii) of the Code ( Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10). The AKA, Dubbo Kart Club, Newcastle Kart Club and Manning Valley Kart Club admit that they gave effect to an arrangement or understanding which contained a provision which: (a) was an exclusionary provision; and (b) had the purpose and was likely to have the effect of substantially lessening competition; in contravention of s 45(2)(b)(i) and 45 (2)(b)(ii) of the Code, by the conduct outlined above. Each of Mr Erdmann and Mr Whiting admits that they were knowingly concerned in, or a party to, the making of or the arriving at the Understanding which was in contravention of s 45(2)(a)(i) and 45 (2)(a)(ii) of the Code. I am satisfied that in each case those contraventions have been made out. PENALTY Legal principles and relevant factors
Case: ICI Australia Operations Pty Limited v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248
Outcome: cited
of the respondents has consented to the imposition of injunctions. The injunctions are available pursuant to s 80 of the Code and are in the nature of public interest injunctions ( ICI Australia Operations Pty Limited v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248 at 255 to 256 per Lockhart J; Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 at 602 per Gleeson CJ and McHugh J).
Case: J McPhee &amp; Son (Australia) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532
Outcome: cited
76 of the Code sets out certain matters as relevant matters to which the Court should have regard in determining an appropriate pecuniary penalty. The parties in the joint submissions referred to further relevant factors addressed by French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152-52,153 and expanded upon in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 and J McPhee &amp; Son (Australia) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532. It is uncontroversial as between the parties that the total penalty for related offences ought not to exceed what is proper for the entire contravening conduct involved ( Mornington Inn v Jordan [2008] FCAFC 70 ; (2008) 168 FCR 383 at [42] - [45] , [91] per Stone and Buchanan JJ).
Case: Markarian v The Queen [2005] HCA 25 ; (2005) 228 CLR 357
Outcome: considered
in mind the process as set out by the High Court in Markarian v The Queen [2005] HCA 25 ; (2005) 228 CLR 357 for the assessment of criminal sanctions where penalties are not fixed by statute, the ACCC and the AKA jointly submit that a total pecuniary penalty of $10,000 imposed on the AKA is appropriate and within the range of penalties that a Court would order in these circumstances. The parties point out that in considering the proposed agreed penalty, the Court should take into account the fact that a negotiated resolution may be expected to include measures designed to promote, for the future, vigorous competition in the particular market. The imposition of penalty is a matter for the Court ( NW Frozen Foods at 290) and the assessment of the appropriate penalty involves exercising a discretion taking into account all relevant factors ( Markarian at [27]). However, the parties submit that the Court should not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure except in a clear case ( NW Frozen Foods at 291, approved and explained in Minister for Industry, Tourism &amp; Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 ; (2004) ATPR 41-993).
Case: Mornington Inn v Jordan [2008] FCAFC 70 ; (2008) 168 FCR 383
Outcome: cited
76 of the Code sets out certain matters as relevant matters to which the Court should have regard in determining an appropriate pecuniary penalty. The parties in the joint submissions referred to further relevant factors addressed by French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152-52,153 and expanded upon in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 and J McPhee &amp; Son (Australia) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532. It is uncontroversial as between the parties that the total penalty for related offences ought not to exceed what is proper for the entire contravening conduct involved ( Mornington Inn v Jordan [2008] FCAFC 70 ; (2008) 168 FCR 383 at [42] - [45] , [91] per Stone and Buchanan JJ).
Case: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285
Outcome: applied
76 of the Code sets out certain matters as relevant matters to which the Court should have regard in determining an appropriate pecuniary penalty. The parties in the joint submissions referred to further relevant factors addressed by French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152-52,153 and expanded upon in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 and J McPhee &amp; Son (Australia) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532. It is uncontroversial as between the parties that the total penalty for related offences ought not to exceed what is proper for the entire contravening conduct involved ( Mornington Inn v Jordan [2008] FCAFC 70 ; (2008) 168 FCR 383 at [42] - [45] , [91] per Stone and Buchanan JJ). The parties also recognise that a principal object of a penalty under s 76 is deterrence ( NW Frozen Foods ). As elaborated, the concept of deterrence is to deter repetition by the contravener and by others who might be tempted to contravene the Act ( TPC v CSR at 52,125 per French J), or to deter others who might be tempted to think that contravention would be of benefit and detection would lead merely to a compliance program for the future ( NW Frozen Foods at 294 295 per Burchett and Kiefel JJ). The need to achieve general deterrence as well as specific deterrence means that a party's capacity to pay must be weighed against the need to impose a sum which members of the public will recognise as significant and proportionate to the seriousness of the contravention ( Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 ; (2005) 215 ALR 301 at [39] per Goldberg J). Bearing in mind the process as set out by the High Court in Markarian v The Queen [2005] HCA 25 ; (2005) 228 CLR 357 for the assessment of criminal sanctions where penalties are not fixed by statute, the ACCC and the AKA jointly submit that a total pecuniary penalty of $10,000 imposed on the AKA is appropriate and within the range of penalties that a Court would order in these circumstances. The parties point out that in considering the proposed agreed penalty, the Court should take into account the fact that a negotiated resolution may be expected to include measures designed to promote, for the future, vigorous competition in the particular market. The imposition of penalty is a matter for the Court ( NW Frozen Foods at 290) and the assessment of the appropriate penalty involves exercising a discretion taking into account all relevant factors ( Markarian at [27]). However, the parties submit that the Court should not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure except in a clear case ( NW Frozen Foods at 291, approved and explained in Minister for Industry, Tourism &amp; Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 ; (2004) ATPR 41-993).
Case: Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53
Outcome: cited
declarations sought in the proposed orders are sought pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth). The parties submit that the proposed declarations, in a convenient and abbreviated form, sufficiently identify the contravening conduct ( Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 at [89] [90]) and thereby provide context for the pecuniary penalties. Accordingly, the parties submit the declarations operate with the pecuniary penalties to achieve the objective of general deterrence. I am satisfied that it is appropriate to make the declarations in the form sought. Injunctions
Case: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076
Outcome: applied
76 of the Code sets out certain matters as relevant matters to which the Court should have regard in determining an appropriate pecuniary penalty. The parties in the joint submissions referred to further relevant factors addressed by French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152-52,153 and expanded upon in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 and J McPhee &amp; Son (Australia) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532. It is uncontroversial as between the parties that the total penalty for related offences ought not to exceed what is proper for the entire contravening conduct involved ( Mornington Inn v Jordan [2008] FCAFC 70 ; (2008) 168 FCR 383 at [42] - [45] , [91] per Stone and Buchanan JJ).
Case: Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591
Outcome: cited
of the respondents has consented to the imposition of injunctions. The injunctions are available pursuant to s 80 of the Code and are in the nature of public interest injunctions ( ICI Australia Operations Pty Limited v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248 at 255 to 256 per Lockhart J; Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 at 602 per Gleeson CJ and McHugh J).
Case: Duffy v Construction, Forestry, Mining and Energy Union [2008] FCA 1804
Outcome: referred to
28 November 2008, the Court published its reasons for judgment on liability issues in this proceeding. In that judgment the Court found that the respondent Union contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) ("the Act"). This judgment deals with the question of the penalty, if any, which should be imposed on the Union for that contravention. These reasons should be read together with the reasons for judgment in the substantive matter ( Duffy v Construction, Forestry, Mining and Energy Union [2008] FCA 1804). The Union engaged in unlawful industrial action under the Act by the imposition by its organisers of limited and short lived bans on the performance of work at a building site called the University Hill site. The relevant portion of the judgment in the substantive matter is set out at [16] to [25]. The following points from that part of the substantive judgment are of particular current relevance: (a) 20 October 2005 a ban was placed on work at the site because of the lack of a female toilet whilst a female worker was present and the absence of a site contamination report; after 9.30 am no work was performed on the site, other than by two employees of the head contractor; there were only two sub-contractors working on site immediately before the imposition of the ban: (i) Crushtec Australia Pty Ltd &#8212; who had Ms Sally Belcher performing work on site; and (ii) V&amp;G Concrete Constructions Pty Ltd who had Mr Fred Gilliland and Mr Shannon Gilliland performing work on the site. (b) 21 October 2005
Case: Australian Competition &amp; Consumer Commission v Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union [2004] FCA 517
Outcome: referred to
recording that fine, I acknowledge that Union is a large body with considerable assets but it is a body which does not exist to make profit but exists for the benefit of its members; see Australian Competition &amp; Consumer Commission v Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union [2004] FCA 517 at [8] per Gray J. It also should be acknowledged, in mitigation of penalty, that the relevant organisers, in imposing the bans, acted in response to what they perceived to be an unsafe workplace where as they were told by the site manager that no soil contamination report had been obtained for the site. The parties agree that each party should bear his and its own costs of the proceeding. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 31 March 2009 Counsel for the Applicant: Mr R Dalton Solicitor for the Applicant: DLA Phillips Fox Counsel for the Respondent: Mr E White Solicitor for the Respondent: Slater &amp; Gordon Date of Hearing: 31 March 2009 Date of Judgment: 31 March 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/299.html
Case: Stuart-Mahoney v Construction, Forestry, Mining &amp; Energy Union [2008] FCA 1426
Outcome: referred to
about six months of the relevant events, the Union organised a seminar designed to educate its officials about the effects of the Act. This conduct indicates a desire to avoid repetition of conduct in breach of the Act; see Stuart-Mahoney v Construction, Forestry, Mining &amp; Energy Union [2008] FCA 1426 at [53] per Tracey J. There is similar previous conduct, most relevantly in Stuart-Mahoney . The events of which occurred about a fortnight before the current events, although that case is not a prior contravention it shows that similar conduct had been undertaken in the past. I say "similar" in a rather loose sense because the imposition of the overtime ban in that matter was far more serious and had far more widespread effects than the transient bans in this matter. Deterrence is important, both general and specific. That is why, notwithstanding the conduct of the head contractor which led to the short lived bans of little consequence, there should be some monetary penalty imposed to reflect that a statutory provision has been breached. It is not as if there was no alternative but to impose a ban. Focussed talks with the head contractor at a high level and/or a referral of the issue to the Commission and/or Worksafe inspectors were alternative available courses of action. In Stuart-Mahoney , Tracey J imposed a penalty of $20,000 for breach of s 38 of the Act in respect of events occurring about the same time as the instant events. Even taking into account the application of the totality principle in that case, the significance and seriousness of the current breach are far less than the circumstances considered by Tracey J. Accordingly, I consider a fine of $5,500 to be appropriate in the current circumstances.
Case: Inspector General in Bankruptcy v Bradshaw [2005] FCA 424
Outcome: discussed
There was no serious dispute that the first respondent, who had been convicted of theft, breached his duties as a trustee. Thus, the declarations were not controversial. Rather, at the first hearing of this matter on 20 September 2004, the key question was whether the Commonwealth was entitled to recover the full amount of the bond or only for compensable loss: see Inspector General in Bankruptcy v Bradshaw [2005] FCA 424 ( Bradshaw 1) at [10] and following. 3 At the first hearing, the Commonwealth did not attempt to prove any costs incurred in relation to the investigation and prosecution of the first respondent. Rather, the Commonwealth pursued its claim that it was entitled to recover the full amount of the bond regardless of the amount of loss. I rejected this contention and held that the Commonwealth was entitled to recover only that which was proven to be its compensable loss: see Bradshaw 1 at [79]. 4 I also stated that I would not dismiss the application before giving the applicants an opportunity to adduce further evidence as to the quantum of the Commonwealth's loss: see Bradshaw 1 at [80]. I adjourned the further hearing of the proceeding to allow the Commonwealth this opportunity.
Case: Inspector General in Bankruptcy v Bradshaw [2006] FCA 22
Outcome: discussed
At the second hearing, the respondents' primary submission, which I ultimately accepted, was that the applicants should not be permitted to reopen their case to prove the quantum of loss: see Inspector General in Bankruptcy v Bradshaw [2006] FCA 22 ( Bradshaw 2) at [28]. Accordingly, I made the declarations sought by the applicants but their application of 12 August 2004 was otherwise dismissed. The issue of costs now falls for determination.
Case: Calderbank v Calderbank [1975] 3 All E R 333
Outcome: referred to
The first respondent made an alternative claim for indemnity costs for the period following 28 June 2005. On that day, the applicants rejected a settlement offer, made by letter of 21 June 2005, for $23,248 "in full and final settlement of all the Applicants' claims in this matter (exclusive of costs), being the total sum of all disbursements you have claimed". Referring to Calderbank v Calderbank [1975] 3 All E R 333, the first respondent submitted that he should receive costs on an indemnity basis after that date. 18 As the first respondent noted, costs may also be awarded on an indemnity basis where a proceeding is unduly prolonged by an imprudent refusal of an offer of compromise: see Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233 per Sheppard J. The rejection of a Calderbank offer does not of itself warrant an order of indemnity costs, even if the offeree fails to secure a more favourable outcome in the proceedings. In order for there to be an indemnity costs order, the respondents must show that the applicants' rejection of their offer was so unreasonable as to justify indemnity costs: see, e.g., Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281 at 287-290 per Hely J. In this case, the applicants acted unreasonably in seeking to resile from the position that they had adopted in communications with the respondents prior to and at the first hearing. In my view, the rejection of the Calderbank offer was unreasonable in all the circumstances because, as at 28 June 2005 (after the directions hearing of 8 June 2005), the applicants should have appreciated that they would not be able to quantify the Commonwealth's loss unless granted leave to reopen their case, and that there were serious doubts that such leave would be forthcoming. This alternative basis would also support an award of indemnity costs in the first respondent's favour in respect of the period after 28 June 2005.