mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Lowe v The Queen [1984] HCA 46 ; (1984) 154 CLR 606
Outcome: referred to
I have also had my attention drawn to some other cases involving imposition of penalty relating to comparative price advertising where the TP Act has been contravened. I accept that I should be cautious in drawing too much from such cases. Necessarily, the contravening conduct will differ in nature, quality and effect, as will the circumstances of the individual contravention from one case to another. Although consistency in penalty is clearly important and is desirable to ensure a rational and fair system of justice (see Lowe v The Queen [1984] HCA 46 ; (1984) 154 CLR 606 at 610-1), it is necessary to consider the individual circumstances of the contraventions and of the contravener. Nevertheless, in the manner described below, I have derived some assistance by looking at cases in which the TP Act has been contravened by comparative price advertising representations and the penalty applied in those cases. 16 I referred to the nature and circumstances of the offence in the primary judgment, and briefly above. I will not repeat that, save to note that at material times, the defendant was a proprietor of a chain of retail jewellery stores operating under the name of "Zamel's". It operated 69 retail stores throughout South Australia, Victoria, Western Australia, Tasmania and the Australian Capital Territory. The 2005 Christmas Sale Catalogue was distributed across each of those regions. 17 The catalogue was issued centrally, that is, through the defendant's head office. It, and the elements of it which contravened s 75AZC(1)(g) of the TP Act, were not the consequence of some local or store-based conduct. In fact, two of the defendant's directors were responsible for authorising the price of the jewellery items offered and advertised for sale, and for the issue of the catalogue. 31 Although parity of penalty should be achieved, so that similar contraventions of the TP Act attract similar penalties, that of course depends upon the individual circumstances of each case. Consistency is desirable, as it flows from a rational and fair system of justice: Lowe v The Queen [1984] HCA 46 ; (1984) 154 CLR 606 at 610-1 per Mason J. 32 I was referred by senior counsel for the prosecutor and senior counsel for the defendant to a number of cases in which penalties were imposed for misleading and deceptive conduct in relation to comparative price advertising.
Case: Sest v Copperart Pty Ltd (1989) ATPR 40-945
Outcome: discussed
Sest v Copperart Pty Ltd (1989) ATPR 40-945 concerned nine offences by three related defendants contrary to s 53(e) of the TP Act. There was, in three sales campaigns, comparative price advertising in a television advertisement one advertisement during each sales campaign where the "was" price was either an artificially inflated recommended retail price or a fictitious regular price, so the claimed savings were significantly overstated. The sentencing judge found the defendants were aware of the falsity of each of the representations. The defendants pleaded guilty. Section 79(2) of the TP Act did not apply, so separate penalties were imposed. On the three counts against the principal offender, it was fined $30,000, $20,000 and $25,000 (a total of $75,000) and ordered to pay the costs of the prosecutor. The maximum fine for each offence at the time was $100,000. The principal points of difference from the present circumstances are clear from the recital of those matters, although there were of course other factual differences of degree. The sentencing judge also was satisfied that, in applying the totality principle, the overall penalty imposed was not so high as to be oppressive.
Case: Trade Practices Commission v Cue Design Ltd (1996) 85 A Crim R 500
Outcome: discussed
Trade Practices Commission v Cue Design Ltd (1996) 85 A Crim R 500 concerned 30 offences contrary to s 53(e) of the TP Act to which the defendants had pleaded guilty. A large retail chain had offered certain garments for sale by dual priced swing tags, with the higher price crossed out; the higher price had not been one at which the garment had been offered for sale. There was no widespread advertising campaign; the contravening conduct occurred only by the in-store price tags. The contraventions attracted one penalty only, by reason of s 79(2) of the TP Act and s 4K(4) of the Crimes Act . The sentencing judge regarded the sales strategy as widespread, and the contraventions as serious. The maximum penalty was $200,000. A penalty of $37,500 was imposed against each of the defendants, making a total of $75,000. As the two defendants were related, the Court treated the contraventions as being by one offender, and imposed on each defendant a penalty equal to half of the whole intended penalty. Again, these are obviously points of difference from the present circumstances, some of which are evident from the above brief description.
Case: Australian Competition and Consumer Commission v Allans Music Group Pty Ltd [2002] FCA 1552
Outcome: discussed
Australian Competition and Consumer Commission v Allans Music Group Pty Ltd [2002] FCA 1552 also concerned a prosecution under s 53(e) of the TP Act. The defendant pleaded guilty to nine charges, and cooperated fully in the inquiry into the contraventions. The defendant was a retailer of musical instruments and associated products. The contravening conduct occurred through a Christmas sale catalogue, of which there were 750,000 copies distributed in areas relevant to the defendant's six stores in Melbourne (2), Sydney, Brisbane, Adelaide and Ballarat. The catalogue offered the items the subject of the nine charges for sale at a "was"/"now" price, but had not sold any of the six items at the "was" price. The defendant, since the offending conduct, had implemented a detailed trade practices compliance program. The sentencing judge imposed one penalty of $80,000 pursuant to s 79(2) of the TP Act. At the time the maximum penalty was $200,000. As appears, there are significant similarities at a general level between the circumstances of that case, and the present circumstances. By contrast with the position of the present defendant is the level of cooperation with the ACCC and the guilty plea, whereas here the cooperation was somewhat later in coming and there was no guilty plea although the defendant cooperated in the presentation of evidence and confined its defence to, in effect, legal contentions based on the uncontested facts. That defendant also acted perhaps in a little more structured a way to ensure ongoing compliance with the TP Act, but I do not consider that difference is of much moment, as the present defendant agreed to abandon the (then potentially) impugned conduct and has since ceased to trade as a jeweller, having sold its business. There are obvious factual differences: the relative number of stores, the relative number of catalogues, the relative number of sales of the items the subject of the offending conduct, the relative cost of the advertised items (as overall, and not surprisingly, the cost of the jewellery items was much less than of musical instruments) and (as the prosecutor pointed out) the relative difference between the strike-through price and the sale price and so the suggested saving as a percentage of the strike-through price.
Case: Australian Competition and Consumer Commission v Carrerabenz Diamond Industries Pty Ltd [2008] FCA 1103
Outcome: discussed
Australian Competition and Consumer Commission v Carrerabenz Diamond Industries Pty Ltd [2008] FCA 1103 concerned six counts of contraventions of s 75AZC(1)(g) of the TP Act by six separate newspaper advertisements in a daily newspaper circulating in Melbourne, Sydney (2), Perth (2) and Adelaide. Those advertisements offered in all 25 items of diamond jewellery at a "usual mark . price"" and a "crazy price". The defendant did not retail its products from established stores in those cities. During the trial, that defendant pleaded guilty to those charges, acknowledging that none of those items had previously been offered for sale at the "usual mark . price". A multiplier was used to the wholesale or acquisition price to arrive at the "usual mark . price" and the sentencing judge accepted as a mitigating factor that comparable items were in fact retailed at two locations at comparable prices to the "usual mark . price". A penalty of $220,000 was imposed, under s 4K(4) of the Crimes Act , having regard to what his Honour described as a "uniqueness about this case". The maximum penalty for a contravention was the same as that presently applicable.
Case: Wong v The Queen [2001] HCA 64 ; (2001) 207 CLR 584
Outcome: referred to
In Wong v The Queen [2001] HCA 64 ; (2001) 207 CLR 584 , Gaudron, Gummow and Hayne JJ at 611-2 re-affirmed the need for a sentencing judge to balance many different and conflicting elements to reach an appropriate sentence. The balancing exercise must take account of all of the circumstances of the offence and of the offender. I have undertaken that process. 38 In the result, in my view, the appropriate penalty to be imposed on the defendant on the counts (in respect of which as I indicated earlier I would impose a conviction) is the total sum of $380,000. I also order the defendant to pay the costs of the prosecutor. 39 There will be recorded a conviction against the defendant on each count. On the 11 counts collectively the defendant is ordered to pay a penalty of $380,000. The defendant is to pay that penalty within two calendar months of the date of these orders. Leave is given to the defendant within 21 days to apply to vary that period. The defendant is also ordered to pay the prosecutor's costs of the prosecution. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 23 January 2009 Counsel for the Plaintiff: Mr M Griffin QC and Mr R Perrotta Solicitor for the Plaintiff: Commonwealth Director of Public Prosecutions Counsel for the Defendant: Mr M Livesey QC and Mr I White Solicitor for the Defendant: Fisher Jeffries Date of Hearing: 23 December 2008 Date of Judgment: 23 January 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/28.html
Case: Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777
Outcome: referred to
On 19 December 2006, I delivered judgment in relation to the claims brought by the ACCC against the CEPU, except for the claims relating to penalty and costs: Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777. Amongst other relief, I said that I would grant the following declarations in relation to the CEPU's accessorial conduct: '1. Prior to August 2001, the First Respondent was accustomed to acquire goods or services from certain Contractors, and in those circumstances, in August 2001, the Second Respondent: (a) aided, abetted, counselled, procured and induced the First Respondent to make; and (b) was knowingly concerned in and party to the First Respondent making, a contract, arrangement or understanding with the Second Respondent which contained a provision that: (c) the First Respondent would not engage a Contractor to perform work at the Loy Yang B power station in Victoria unless that Contractor had a current certified agreement with the Second Respondent; and (d) was included in the contract, arrangement or understanding for the purpose of preventing or hindering the First Respondent from acquiring goods or services from Contractors who did not have a current certified agreement with the Second Respondent, with the consequence that the First Respondent thereby contravened s 45E(3) of the Trade Practices Act 1974 (Cth). 2. Prior to August 2001, the First Respondent was accustomed to acquire goods or services from certain Contractors, and in those circumstances, in August 2001, the Second Respondent counselled, procured and induced the First Respondent to give effect to the provision of the contract, arrangement or understanding with the Second Respondent referred to in paragraph 1 of these declarations, with the consequence that the First Respondent thereby contravened s 45EA of the Trade Practices Act .' I also held that the ACCC was entitled to injunctive relief against the CEPU. 3 For convenience, I will adopt the terms defined in my principal judgment for the purposes of these reasons for judgment. 4 The ACCC sought orders that a pecuniary penalty be imposed on the CEPU pursuant to s 76 of the TPA and that the CEPU pay the ACCC's costs of the proceedings against the CEPU on an indemnity basis. The CEPU disputes that it should pay the ACCC's costs of the proceedings on an indemnity basis. At the request of the parties, I heard submissions on penalty on 22 December 2006 and deferred the question of costs. I was informed by the parties that this course was necessary because both parties had made Calderbank offers during the course of the proceedings and that it was not possible to address the question of indemnity costs until the Court has determined what penalty should be imposed on the CEPU. These reasons for judgment are therefore confined to the question of penalty.
Case: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Outcome: followed
There was no dispute between the parties as to the principles which govern the imposition of a penalty under s 76(1). The relevant principles have been discussed at length in numerous cases: see Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 ( 'CSR' ) at 52,151 52,153 per French J; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 ( 'NW Frozen Foods' ) at 291-295 per Burchett and Kiefel JJ; Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 2 ; (2003) 127 FCR 170 at 172 173 [2]-[6] per Sackville J and at 181 184 [47]-[60] per Merkel J; J McPhee &amp; Son (Australia) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532 ( 'McPhee' ) at 577-579 [158]-[166]; Australian Competition and Consumer Commission v Visy Paper Pty Ltd (No 2) (2004) 212 ALR 564 ( 'Visy Paper (No 2)' ) at 571-572 [28]-[32] per Sackville J; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2 ) (2005) 215 ALR 281 at 283 285 [5]-[12] per Merkel J; and Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 ( 'Leahy (No 3)' ) at 307-311 [31]-[43] per Goldberg J. 60 The ACCC said that the existence of a trade practices compliance program was 'possibly relevant' to the determination of penalty. I do not see any need for the qualification added by the ACCC. In my opinion, the introduction of a compliance program in 2004, and its continuing operation, is a relevant factor in determining penalty: see CSR per French J at 52,123; and NW Frozen Foods at 293-294 per Burchett and Kiefel JJ. In Rural Press at 43,291 [22], Mansfield J said: 'The fact that, following a contravention, a contravening entity has implemented at its own expense a trade practices compliance program to ensure its compliance and that of its employees and agents with the Act, will also be a consideration which will mitigate the level of a pecuniary penalty: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commissioner (1997) ATPR |P41-546; (1996) 141 ALR 640...; Prestige Motors . Such conduct gives some confidence that the particular contravener will not engage in similar conduct in the future, and it may also be assumed would come to the knowledge of the community through the reasons given when fixing penalty, so as also to serve the purpose of community deterrence.' I agree with these observations.
Case: Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 2 ; (2003) 127 FCR 170
Outcome: cited
There was no dispute between the parties as to the principles which govern the imposition of a penalty under s 76(1). The relevant principles have been discussed at length in numerous cases: see Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 ( 'CSR' ) at 52,151 52,153 per French J; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 ( 'NW Frozen Foods' ) at 291-295 per Burchett and Kiefel JJ; Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 2 ; (2003) 127 FCR 170 at 172 173 [2]-[6] per Sackville J and at 181 184 [47]-[60] per Merkel J; J McPhee &amp; Son (Australia) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532 ( 'McPhee' ) at 577-579 [158]-[166]; Australian Competition and Consumer Commission v Visy Paper Pty Ltd (No 2) (2004) 212 ALR 564 ( 'Visy Paper (No 2)' ) at 571-572 [28]-[32] per Sackville J; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2 ) (2005) 215 ALR 281 at 283 285 [5]-[12] per Merkel J; and Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 ( 'Leahy (No 3)' ) at 307-311 [31]-[43] per Goldberg J.
Case: Australian Competition and Consumer Commission v Visy Paper Pty Ltd (No 2) (2004) 212 ALR 564
Outcome: followed
There was no dispute between the parties as to the principles which govern the imposition of a penalty under s 76(1). The relevant principles have been discussed at length in numerous cases: see Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 ( 'CSR' ) at 52,151 52,153 per French J; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 ( 'NW Frozen Foods' ) at 291-295 per Burchett and Kiefel JJ; Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 2 ; (2003) 127 FCR 170 at 172 173 [2]-[6] per Sackville J and at 181 184 [47]-[60] per Merkel J; J McPhee &amp; Son (Australia) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532 ( 'McPhee' ) at 577-579 [158]-[166]; Australian Competition and Consumer Commission v Visy Paper Pty Ltd (No 2) (2004) 212 ALR 564 ( 'Visy Paper (No 2)' ) at 571-572 [28]-[32] per Sackville J; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2 ) (2005) 215 ALR 281 at 283 285 [5]-[12] per Merkel J; and Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 ( 'Leahy (No 3)' ) at 307-311 [31]-[43] per Goldberg J.
Case: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) (2005) 215 ALR 281
Outcome: cited
There was no dispute between the parties as to the principles which govern the imposition of a penalty under s 76(1). The relevant principles have been discussed at length in numerous cases: see Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 ( 'CSR' ) at 52,151 52,153 per French J; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 ( 'NW Frozen Foods' ) at 291-295 per Burchett and Kiefel JJ; Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 2 ; (2003) 127 FCR 170 at 172 173 [2]-[6] per Sackville J and at 181 184 [47]-[60] per Merkel J; J McPhee &amp; Son (Australia) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532 ( 'McPhee' ) at 577-579 [158]-[166]; Australian Competition and Consumer Commission v Visy Paper Pty Ltd (No 2) (2004) 212 ALR 564 ( 'Visy Paper (No 2)' ) at 571-572 [28]-[32] per Sackville J; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2 ) (2005) 215 ALR 281 at 283 285 [5]-[12] per Merkel J; and Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 ( 'Leahy (No 3)' ) at 307-311 [31]-[43] per Goldberg J.
Case: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301
Outcome: followed
There was no dispute between the parties as to the principles which govern the imposition of a penalty under s 76(1). The relevant principles have been discussed at length in numerous cases: see Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 ( 'CSR' ) at 52,151 52,153 per French J; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 ( 'NW Frozen Foods' ) at 291-295 per Burchett and Kiefel JJ; Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 2 ; (2003) 127 FCR 170 at 172 173 [2]-[6] per Sackville J and at 181 184 [47]-[60] per Merkel J; J McPhee &amp; Son (Australia) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532 ( 'McPhee' ) at 577-579 [158]-[166]; Australian Competition and Consumer Commission v Visy Paper Pty Ltd (No 2) (2004) 212 ALR 564 ( 'Visy Paper (No 2)' ) at 571-572 [28]-[32] per Sackville J; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2 ) (2005) 215 ALR 281 at 283 285 [5]-[12] per Merkel J; and Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 ( 'Leahy (No 3)' ) at 307-311 [31]-[43] per Goldberg J.
Case: Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd (1996) ATPR 41-515
Outcome: considered
In his trial judgment in Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd (1996) ATPR 41-515 at 42,444 42,445, Heerey J said that it was also relevant to consider whether the respondents had engaged in similar conduct in the past, the financial position of the respondents and their capacity to pay, and the deterrent effect of the proposed penalty. These factors were not the subject of any adverse comment in the Full Court.
Case: Trade Practices Commission v CC (NSW) Pty Ltd (No 3) (1994) ATPR 41-363
Outcome: cited
As the wording of s 76(1) indicates, the factors enumerated above are not exhaustive and other considerations may be relevant in a particular case: Trade Practices Commission v CC (NSW) Pty Ltd (No 3) (1994) ATPR 41-363 at 42,723; and Leahy (No 3) at 308 [33] per Goldberg J. It is also necessary to bear in mind that s 76 covers a range of different classes of contravention under Pt IV of the TPA to which different considerations may be relevant.
Case: Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091
Outcome: cited
Much earlier in the history of the TPA, Smithers J expressed similar views in Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091 ( 'Stihl' ) at 17,896: 'The penalty should constitute a real punishment proportionate to the deliberation with which the defendant contravened the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrence of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive.' 16 In McPhee , the Full Court (comprising Black CJ, Lee and Goldberg JJ) reviewed the authorities, including Stihl , Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 at 298 and Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375 ( 'TNT' ) at 40,166, in which the courts attached importance to the deliberateness of the contravening conduct. The Full Court concluded that in fixing penalties under s 76 it is appropriate and relevant to take into account whether the conduct that contravened the TPA was systematic, deliberate or covert: at 577 [158] and at 579 [163]. In doing so, the Court does not stray into irrelevant moral considerations.