Case: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) ATPR 41-562; 75 FCR 238
Outcome: discussed
There has also been some debate as to whether the issue of punishment ought to also be considered: see Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) ATPR 41-562 at 43,810 43,811; ACCC v ABB No 1 at 42,936. In Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR 41-851 at 44,543, the Full Court raised the issue of the dispute in relation to the role of punishment in imposing penalties. The Full Court noted: "...we see little or indeed no difference between taking into account, in computing the penalty, the deliberate nature of the conduct in question (a matter the relevance of which is not in dispute) and taking into account the fact that the penalty should act as a punishment of the offender." 20 Two further matters need to be taken into account, the totality principle (see Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375 at 40,169 per Burchett J and Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) ATPR 41-562 at 43,817) and the parity principle (see Australian Competition and Consumer Commission v McMahon Services Pty Ltd (No 1) (2004) ATPR 42-022 at [84]-[85] (" ACCC v McMahon ")). In ACCC v Leahy , I said at [43]: "When dealing with several respondents whose situation and culpability are not the same, it is inevitable that different penalties will be imposed. Nevertheless it is necessary to bear in mind what is generally referred to as the parity principle. All other things being equal, similar conduct should be deserving of similar penalties. Of course, as the Full Court said in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission ... 'other things are rarely equal where contraventions of the Trade Practices Act are concerned'. It is also desirable to bear in mind the penalties that have been imposed in past cases. A dramatic departure from previous practice might be seen as representing unjustifiable disparity but may also demonstrate that a level or quantum of previous penalties may, now in the present circumstances under consideration, be regarded as inadequate." 69 Safeway submitted that it should not be penalised more severely than the total penalties imposed on George Weston Foods Limited ("Tip Top") in this proceeding: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238. I reject that submission. The only penalty imposed on Tip Top that could be relevant to any penalties imposed on Safeway is the contravention of s 45 at Preston Market. Tip Top's other contraventions were for contraventions of s 48 of the Act . There were no allegations of breach of s 46 as against Tip Top. It would be plainly wrong to compare penalties in circumstances where the contraventions relate to different sections of the Act and different types of conduct. 70 Tip Top was ordered to pay $300,000 in respect of the making of the price-fixing agreement and $450,000 in respect of the implementation of it. However, Safeway's contravention was substantially more serious than Tip Top, given that it was Safeway's conduct which brought about the events which led to the contravening conduct. 71 Safeway identified nine matters which it submitted were significant when assessing the penalties against Tip Top: &#8226; the contraventions were brought about by senior people in the Victorian division of Tip Top; &#8226; none of the senior officers at Tip Top acted as a check or control on the others involved; &#8226; the contraventions did not occur as result of one Tip Top officer acting on a frolic of his own; &#8226; Tip Top operated a compliance program which made clear that the contraventions were strictly prohibited and could be the subject of severe penalties, and the program was found to be ineffective and was ignored or disregarded; &#8226; it was because the compliance program was disregarded by senior officers that a significant deterrent element was required; &#8226; the size of George Weston Foods Ltd (Tip Top) was significant as its commercial activity permeated the commercial and consumer life of the public; &#8226; Tip Top's conduct in resale price maintenance was engaged in with a conscious appreciation that it was intended to ensure that the discounting of bread by retailers was discouraged or prevented, and was aimed directly towards small businesses; &#8226; Tip Top's conduct was deliberate and systematic and engaged in for commercial reasons; Tip Top (on the agreed facts) anticipated Safeway's reaction and did not seek to resist Safeway; and &#8226; with respect to the Preston market incident, the contravention of s 45 was (on the agreed facts) admitted and the agreement on prices was reached at senior management level. Although these matters were particularly relevant to the fixing of penalties against Tip Top there are many points of difference between Tip Top's contraventions and Safeway's contraventions and their respective circumstances which render comparison of little value. 83 In having regard to all of the above factors, I have nevertheless borne in mind the totality principle. That is, I have ensured that having determined an appropriate penalty for each contravention, I have, as a check considered whether the aggregate is appropriate for the various acts of contravening conduct involved: McDonald v The Queen (1994) 48 FCR 555 and Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) ATPR 41-562 at 43,817.