mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296
Outcome: cited
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.
Case: Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR 41-851
Outcome: cited
In Visy Paper (No 2) , Sackville J noticed the debate as to whether the punishment of a contravener is a relevant factor to take into account in determining the appropriate penalty to be imposed. His Honour said that the authorities suggest that there is little or no difference between taking into account the deliberate nature of the conduct in question and the object of punishing the contravener: see Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR 41-851 at 44,542 44,543 [50]; Minister for Environment and Heritage v Greentree (No 3) (2004) 136 LGERA 89 at 102 104 [52]-[57] per Sackville J; see also Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238 at 241 per Goldberg J; and Leahy (No 3) at 308 309 [37]-[39] per Goldberg J.
Case: Minister for Environment and Heritage v Greentree (No 3) (2004) 136 LGERA 89
Outcome: cited
In Visy Paper (No 2) , Sackville J noticed the debate as to whether the punishment of a contravener is a relevant factor to take into account in determining the appropriate penalty to be imposed. His Honour said that the authorities suggest that there is little or no difference between taking into account the deliberate nature of the conduct in question and the object of punishing the contravener: see Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR 41-851 at 44,542 44,543 [50]; Minister for Environment and Heritage v Greentree (No 3) (2004) 136 LGERA 89 at 102 104 [52]-[57] per Sackville J; see also Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238 at 241 per Goldberg J; and Leahy (No 3) at 308 309 [37]-[39] per Goldberg J.
Case: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238
Outcome: cited
In Visy Paper (No 2) , Sackville J noticed the debate as to whether the punishment of a contravener is a relevant factor to take into account in determining the appropriate penalty to be imposed. His Honour said that the authorities suggest that there is little or no difference between taking into account the deliberate nature of the conduct in question and the object of punishing the contravener: see Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR 41-851 at 44,542 44,543 [50]; Minister for Environment and Heritage v Greentree (No 3) (2004) 136 LGERA 89 at 102 104 [52]-[57] per Sackville J; see also Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238 at 241 per Goldberg J; and Leahy (No 3) at 308 309 [37]-[39] per Goldberg J.
Case: Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169
Outcome: cited
Depending on the circumstances of the case, other principles may also be relevant. Where the relevant conduct gives rises to several contraventions of the TPA, it will be relevant to take into account the totality principle to ensure that the total penalty does not exceed what is proper for the entire contravening conduct in question: see Trade Practices Commission v Advance Bank Australia Ltd (1993) ATPR 41-229 ( 'Advance Bank' ) at 41,164 per Gummow J; Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169 ( 'ABB Transmission' ) at 179-180 [38]-[39]; TNT at 40,169. The parity principle, ie all other things being equal, similar conduct should be deserving of similar penalties, will have direct application where penalties are being imposed on several contravening respondents. The principle also draws attention, albeit less directly, to the penalties that have been imposed in past cases. There is, of course, a limit to the usefulness of any comparison with past penalties: the circumstances of particular cases are likely to differ in significant respects and each case must be considered by reference to its own circumstances: see Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR 41-763 ( 'George Weston' ) at 40,984 [31] per Goldberg J. 23 The CEPU also advanced a number of alternative submissions. First, it submitted that its conduct should be viewed as a single course of conduct, attracting one penalty only, even if it were possible to draw some distinction between the conduct that was relevant to s 45E and that which was relevant to s 45EA. In support of this submission, the CEPU relied upon Advance Bank at 41,164 per Gummow J; ABB Transmission at 179-180 [38] and Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR 41-833 ( 'Rural Press' ) at 43,290 [16]-[17]. Further or alternatively, the CEPU submitted that if this approach could not be adopted, its conduct in relation to the two contraventions was so interconnected that, by the application of the totality principle, the Court ought to arrive at a penalty of the same magnitude as if it were dealing with a single contravention: see Rural Press at 43,290 [19] and TNT at 40,169.
Case: Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR 41-763
Outcome: cited
Depending on the circumstances of the case, other principles may also be relevant. Where the relevant conduct gives rises to several contraventions of the TPA, it will be relevant to take into account the totality principle to ensure that the total penalty does not exceed what is proper for the entire contravening conduct in question: see Trade Practices Commission v Advance Bank Australia Ltd (1993) ATPR 41-229 ( 'Advance Bank' ) at 41,164 per Gummow J; Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169 ( 'ABB Transmission' ) at 179-180 [38]-[39]; TNT at 40,169. The parity principle, ie all other things being equal, similar conduct should be deserving of similar penalties, will have direct application where penalties are being imposed on several contravening respondents. The principle also draws attention, albeit less directly, to the penalties that have been imposed in past cases. There is, of course, a limit to the usefulness of any comparison with past penalties: the circumstances of particular cases are likely to differ in significant respects and each case must be considered by reference to its own circumstances: see Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR 41-763 ( 'George Weston' ) at 40,984 [31] per Goldberg J. 51 I have already observed that the CEPU was aware that DJN performed work at Loy Yang B, that it did not have an EBA with the CEPU, and that the provision proposed by the CEPU for Edison's agreement would operate to exclude DJN from working at Loy Yang B so long as it did not enter into an EBA with the CEPU. Edison was also aware of these matters. As events transpired, DJN was the only electrical contractor affected by the arrangement over the period between August 2001 and December 2003. However, the impact of the arrangement was potentially wider than this. In my opinion, it is appropriate to have regard to the fact that the arrangement was general in terms, and that the exclusionary provision had the potential to prevent any electrical contractor being retained by Edison to perform work at Loy Yang B if the contractor did not obtain or maintain a current certified agreement with the CEPU. In Rural Press at 43,296 [46], Mansfield J pointed out that even in cases where the contravening conduct was not carried through to its conclusion and therefore no loss resulted, courts have taken into account the potential harm in determining the seriousness of the offence; see also George Weston and Australian Competition and Consumer Commission v Cromford Pty Ltd (1998) ATPR 41-618.
Case: Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR 41-833
Outcome: approved
The CEPU also advanced a number of alternative submissions. First, it submitted that its conduct should be viewed as a single course of conduct, attracting one penalty only, even if it were possible to draw some distinction between the conduct that was relevant to s 45E and that which was relevant to s 45EA. In support of this submission, the CEPU relied upon Advance Bank at 41,164 per Gummow J; ABB Transmission at 179-180 [38] and Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR 41-833 ( 'Rural Press' ) at 43,290 [16]-[17]. Further or alternatively, the CEPU submitted that if this approach could not be adopted, its conduct in relation to the two contraventions was so interconnected that, by the application of the totality principle, the Court ought to arrive at a penalty of the same magnitude as if it were dealing with a single contravention: see Rural Press at 43,290 [19] and TNT at 40,169.
Case: L Vogel &amp; Son Pty Ltd v Anderson (Minister for Customs) [1967] HCA 46 ; (1968) 120 CLR 157
Outcome: cited
In Trade Practices Commission v Allied Mills Industries Pty Ltd (No 4) (1981) 37 ALR 256 ( 'Allied Mills' ) at 258, Sheppard J was required to assess penalties in relation to price fixing contraventions of s 45 of the TPA. His Honour said that where more than one breach of s 45 is alleged and admitted, it would not be appropriate to impose substantive penalties for each breach because each arises out of the one transaction, namely, the arrangement or understanding alleged in the amended statement of claim. In taking this course, Sheppard J followed the approach adopted by Kitto J in imposing penalties for breaches of the Customs Act 1901 (Cth) in L Vogel &amp; Son Pty Ltd v Anderson (Minister for Customs) [1967] HCA 46 ; (1968) 120 CLR 157 at 164-165. Sheppard J's approach was followed in TNT at 40,169. These cases involved applications of the totality principle rather than s 76(3).
Case: Trade Practices Commission v Bata Shoe Company of Australia Pty Ltd (No 2) (1980) 44 FLR 149
Outcome: cited
The same observation can be made concerning Advance Bank , upon which the CEPU relied. In that case, Gummow J was required to assess penalties in relation to five misleading advertisements published over a two week period. His Honour referred with approval to the following remarks by Lockhart J in Trade Practices Commission v Bata Shoe Company of Australia Pty Ltd (No 2) (1980) 44 FLR 149 at 176: 'Guidance is given in the field of sentencing for criminal offences by the well-known principle that where several offences are heard together and arise out of the same transaction it is a sound working rule that the sentences imposed for those offences should be made concurrent; it is inappropriate to sentence consecutively when the offences were all really involved in the same episode... I accept that the contraventions arose out of the one course or pattern of conduct. Although it is necessary to look at each contravention separately, nevertheless consideration must be given to the facts common to each contravention.'
Case: Australian Competition and Consumer Commission v Cromford Pty Ltd (1998) ATPR 41-618
Outcome: cited
I have already observed that the CEPU was aware that DJN performed work at Loy Yang B, that it did not have an EBA with the CEPU, and that the provision proposed by the CEPU for Edison's agreement would operate to exclude DJN from working at Loy Yang B so long as it did not enter into an EBA with the CEPU. Edison was also aware of these matters. As events transpired, DJN was the only electrical contractor affected by the arrangement over the period between August 2001 and December 2003. However, the impact of the arrangement was potentially wider than this. In my opinion, it is appropriate to have regard to the fact that the arrangement was general in terms, and that the exclusionary provision had the potential to prevent any electrical contractor being retained by Edison to perform work at Loy Yang B if the contractor did not obtain or maintain a current certified agreement with the CEPU. In Rural Press at 43,296 [46], Mansfield J pointed out that even in cases where the contravening conduct was not carried through to its conclusion and therefore no loss resulted, courts have taken into account the potential harm in determining the seriousness of the offence; see also George Weston and Australian Competition and Consumer Commission v Cromford Pty Ltd (1998) ATPR 41-618.
Case: Australian Competition and Consumer Commission v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2004) ATPR 42-002
Outcome: considered
Prior to August 2001, there was no finding that the CEPU had contravened, or been involved in any contravention, of the TPA. Arising out of events that took place in October 2002, the ACCC instituted proceedings against the CEPU and other unions alleging a contravention of Pt IV of the TPA and which resulted in consent orders: see Australian Competition and Consumer Commission v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2004) ATPR 42-002 ( 'PKIU' ). The proceedings related to a picket that was established between 2 October and 23 October 2002 at premises in East Gippsland. The CEPU was the third respondent to the proceedings. Under the consent orders, the CEPU submitted to an injunction by consent, agreed to pay a pecuniary penalty of $100,000, and agreed to implement a trade practices compliance program. 58 Aside from this proceeding and the PKIU case, there is no evidence of any other finding that the CEPU has been involved in contraventions of the TPA either before or after August 2001. 59 The trade practices compliance program which the CEPU implemented in 2004 in accordance with the consent orders made in PKIU is ongoing. It includes the preparation of a compliance procedure document outlining the CEPU's obligations under the TPA and the conduct of regular trade practices seminars for all CEPU officers throughout Australia. On the evidence before the Court, there is no reason to doubt the rigour or ambit of the compliance program. The implementation of the compliance program has been audited and reviewed each year since 2004 and a copy of each audit report was provided to the ACCC. The ACCC has not raised any concerns about its content or reach.
Case: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993
Outcome: cited
It is a well accepted principle that, in the assessment of a penalty, a respondent who withdraws defences and acknowledges liability, and thereby saves the community the costs of a lengthy trial, is entitled to special consideration in reduction of the penalty that would otherwise be assessed: NW Frozen Foods at 293-294 per Burchett and Kiefel JJ; TNT at 40,169 40,170 per Burchett J; and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993 at 48,626 48,630 [49]-[71] per Branson, Sackville and Gyles JJ. The extent of the discount will depend, inter alia, upon whether the respondent's co-operation with the ACCC indicates a resolve to comply with the law, thereby reducing the need for specific deterrence: see Leahy (No 3) at 309-310 [40]-[41] per Goldberg J.
Case: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236
Outcome: applied
The ACCC's submission is unacceptable as a matter of general principle and runs counter to settled authority in this Court. In TNT at 40,170, Burchett J said: 'It need hardly be emphasized that the acceptance by the Court of the principle recognizing the taking into account of an admission of liability, and the saving of time and expense involved in it, does not imply any doctrine that would increase a penalty because there was no admission. The law does not permit that. The contravener who fights the case to the bitter end will obtain no discount, but the penalty imposed will be the proper penalty, and no more. However, the penalties I have ordered to be paid here do not represent what I would have imposed as proper in such circumstances, since I have made substantial allowance for the admissions, both as indicative of a true resolve to comply with the law in future, and as involving a benefit to the community, belated though it was, that ought to be recognized in the fixing of penalties that are just in all the circumstances.' In Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236, the ACCC contended on appeal that the trial judge had erred by concluding that the respondents should be given credit for their meaningful co-operation in the investigation of the ACCC and in the conduct of the hearing. On that occasion, the ACCC submitted that there was no support in the authorities, or in principle, for a penalty to be reduced on account of the way in which litigation is conducted where liability is in issue. The Full Court accepted the ACCC's submission and concluded that the conduct of the trial should not have been taken into account in fixing penalty, although it is something to which regard might have been had in relation to costs orders: at 285 [166].
Case: Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472
Outcome: considered
In Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472, the offending conduct comprised two picket lines which delayed the departure of two vessels. The parties agreed upon a penalty of $75,000 for each of the contraventions of s 45DB of the TPA. Hill J found that these penalties were appropriate, although he considered them to be at the bottom of the range, bearing in mind that the conduct was deliberate and involved the implementation of a policy which was most likely to contravene the TPA: at 493 [97]. Hill J also said that, in accepting the agreed penalties of $75,000 for each contravention, he had taken into account the fact that the respondents had co-operated with the ACCC to agree the facts and had accepted that their conduct amounted to a contravention, thereby reducing the expense which a contested hearing would have required: at 493 [97].
Case: Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730
Outcome: considered
In Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730 , two unions were involved in conduct on two separate occasions, in April 2004 and again in November 2004, in contravention of s 45D of the TPA. The April conduct interrupted a concrete pour for several hours and it was followed by a picket which obstructed access to a construction site for a new hotel at the Burswood Casino in Perth. The interruption of a concrete pour and the picket caused significant delays to the project and exposed the builder to losses. The November conduct was another picket at the site which restricted access by construction workers. Each of the unions agreed to pay a pecuniary penalty to the Commonwealth of $50,000. Nicholson J concluded that the proposed penalties were appropriate. In doing so, his Honour made particular reference to the fact that the unions had co-operated with the ACCC by approaching the Court for the final disposition of the proceeding on a non-contested basis, and that neither union had engaged in the conduct for financial gain: at [14]. 77 The facts of these cases are very different from the facts of the case before me. Each case involved an agreement as to the appropriate level of penalty. I accept that the conduct involved in each case had significant adverse commercial or financial consequences, more so than in the case before me, although I note that in the PKIU case the unions agreed to pay compensation to the affected company. In the end, while these three cases provide general guidance, I have derived limited assistance from them because each case turned on its particular facts. 78 Weighing up all of the factors to which I have referred, I consider that the penalty of $20,000 proposed by the CEPU does not properly reflect the nature and seriousness of the contravening conduct. It is, moreover, inadequate from the viewpoint of both specific and general deterrence. On the other hand, I consider that the penalty proposed by the ACCC is disproportionate to the size and financial resources of the CEPU and the nature, seriousness, duration and impact of the contravening conduct.
Case: Hall v Normal Defendant [1966] HCA 36 ; (1966) 117 CLR 423
Outcome: cited
A determination whether a decision is interlocutory or final is frequently one of much difficulty. The usual formulation, that a judgment is interlocutory in nature if it does not 'finally dispose of the rights of the parties', does not resolve that difficulty. That formulation is derived from the judgments of the High Court in Hall v Normal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 at p 440, and in Licul v Corney [1976] HCA 6 ; (1975) 180 CLR 213. 32 See also in this context the judgment of Lindgren J in Macteldir Pty Ltd v Dimoski [2006] FCA 489 ; (2006) 152 FCR 487 , where his Honour said at p 489, par 6, discussing whether an order of dismissal was final or interlocutory: 'Whether a judgment if final, rather than interlocutory, usually depends on whether it finally determines the rights of the parties in respect of the matter of dispute between them: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 at 443 per Windeyer J; Licul v Corney [1976] HCA 6 ; (1976) 180 CLR 213 at 225; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 ('Carr') at 248; Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 ('Luck') at [4]. In Carr at 248 and in Luck at [4], it was observed that in applying this test, the Court must have regard to the legal effect, as distinct from the practical effect, of the judgment. In those cases, the full expression used was 'finally determine[s] the rights of the parties in a principal cause pending between them'.