Case: Trade Practices Commission v Simpson Pope Ltd (1980) 30 ALR 544
Outcome: cited
In McPhee at 583 [181]-[183], the Full Court considered the imposition of penalties for making and giving effect to an arrangement or understanding in contravention of s 45. The Court concluded that s 76(3) applied because the conduct which constituted the second contravention of giving effect to the arrangement was part and parcel of the conduct which constituted the first contravention of making the arrangement: 'The case presented to his Honour did not distinguish the conduct of McPhee involving the formation of the proscribed arrangement or understanding from the conduct of McPhee said to constitute giving effect to such arrangement or understanding. According to the Commission's case, the delivery by Mr Webb to Mr Jolly of McPhee's rates was an integral part of the conduct that constituted the contravention of s 45 in making, or arriving at, an understanding or arrangement. That same act was also relied upon by the Commission as the act which constituted the further contravention by McPhee of giving effect to the arrangement or understanding. If the disclosure by McPhee to DFE of the rates charged by McPhee to ACI Florapak could be said to be an act giving effect to an arrangement or understanding already made or arrived at, it was not conduct distinguishable from the conduct of McPhee which constituted the making of such an arrangement or understanding. Pursuant to s 76(3) of the Act, if conduct constitutes a contravention of two or more provisions of Pt IV , a proceeding may be instituted in respect of each contravention but a person is not liable to more than one pecuniary penalty in respect of the same conduct. This was not a case involving repeated conduct concerning discrete events occurring at different times and involving disparate parties: Trade Practices Commission v Simpson Pope Ltd (1980) 30 ALR 544; 47 FLR 334 at 336 per Franki J. We therefore accept the submission that his Honour erred in imposing separate penalties in respect of the ACI Florapak conduct. The conduct which constituted the second contravention was part and parcel of the conduct which constituted the first contravention and s 76(3) prescribed that only one penalty could be imposed.' 40 This is not a case where different actions were taken by the CEPU at different times and in relation to dealings with different persons or entities. In such a case, the most that could be said was that the conduct on each occasion was of a similar character: see Trade Practices Commission v Simpson Pope Ltd (1980) 30 ALR 544 at 548 per Franki J. On the findings I have made, the CEPU's conduct was part and parcel of one transaction or episode that took place over the period between 9 August and 23 August 2001. 41 In my opinion, the conduct on the part of the CEPU that made it an accessory to Edison's contravention of s 45E(3) is the same conduct that made it an accessory to Edison's contravention of s 45EA. Accordingly, s 76(3) applies. The consequence is that the CEPU is not liable to more than one pecuniary penalty under s 76(1) in respect of its conduct, and the maximum amount of that penalty is $750,000.