Case: NW Frozen Foods Pty Limited v Australian Competition and Consumer Commission (1996) 71 FCR 285
Outcome: applied
Nevertheless, the parties accept, as they must, that the Court is not merely a "rubber stamp" for the agreement reached between them. It is for me to determine the appropriate penalties having regard to all the circumstances: NW Frozen Foods Pty Limited v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 290-291 (per Burchett and Kiefel JJ); Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993 (per Branson, Sackville and Gyles JJ). 5 The essential question which arises is not whether I would, without the assistance of the parties, have reached the precise figures set out above. Rather, it is whether those amounts are "within the permissible range" in all the circumstances: NW Frozen Foods at 291. 6 In answering that question, it is necessary to consider the following: (i) the parties (ii) the contraventions (iii) the principles which apply as to determination of the appropriate penalty (iv) the principles which apply to cases where the parties agree on the penalty (v) the particular considerations which apply in the present case as a consequence of the principles stated in those authorities. 7 In the period covered by the contraventions, ie. between 2001 and 2004, Navman supplied marine navigational equipment and personal and in-car navigational products ("PCN products") through selected retail dealers in Australia. 8 Mr Baird and Mr King were senior executives of Navman during the relevant period. Mr Baird was the General Manager of Navman's marine division. He was also a director of the company from November 2003. 9 Mr King held the position of National Sales Manager from about August 2003. Later, he became the Australasian Sales Manager for Navman's PCN division. He was the most senior manager in that division and was responsible for its operations in Australia. 112 The matters to which the Court may have regard under s 76(1) are not confined to the four matters enumerated in the sub-section. The authorities have identified a number of additional factors which the Court may take into account: Trade Practices Commission v CSR Limited (1991) ATPR 41-076 at 52,152-52,153; NW Frozen Foods at 292-293. 113 The principal, and probably the only, object of the penalties that are imposed by s 76(1) is deterrence, both specific and general: CSR at 52,152; NW Frozen Foods at 292-293; Australian Competition and Consumer Commission v High Adventure Pty Limited (2006) ATPR 42-091 at [11]. There are many other authorities to the same effect. 114 The penalty should take into account the deliberateness of the contravention and the period over which it occurred. The involvement of senior management and the corporate culture in which the conduct occurred are also relevant factors: CSR at 52,152-52,153; NW Frozen Foods at 292-293. 115 The penalty should constitute a real punishment which takes into account the size of the company and the overall commercial environment, but it should not be so high as to be oppressive: CSR at 51,152-52,153; NW Frozen Foods at 293. 116 Determination of the amount of a penalty is not an exact science. Each case turns on its own facts and limited assistance is to be obtained from considering the amounts imposed in other proceedings: NW Frozen Foods at 295; Mobil Oil at [51]; Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 at [320] . 120 The reasons given by Burchett and Kiefel JJ in NW Frozen Foods contain an authoritative statement of the principles to be applied where the parties agree on the appropriate penalty. The Full Court in Mobil Oil set out at [51] the six propositions which emerge from the reasons in NW Frozen Foods. 121 In Mobil Oil , Branson, Sackville and Gyles JJ agreed at [79] with the principles stated in NW Frozen Foods .