mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Competition and Consumer Commission v McMahon Services Pty Ltd (No 1) (2004) ATPR 42-022
Outcome: cited
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."
Case: Australian Competition and Consumer Commission v ABB Transmission &amp; Distribution Ltd (No 2) (2002) 190 ALR 169
Outcome: cited
The Commission submitted that although the penalties sought for Safeway's contraventions were substantial, the penalties were appropriate having regard to the available maximum and the importance of deterring the abuse of market power that is the essence of s 46. The Commission relied on the observations of Finkelstein J in Australian Competition and Consumer Commission v ABB Transmission &amp; Distribution Ltd (No 2) (2002) 190 ALR 169 at [13]: "... antitrust legislation is founded on the underlying premise that free competition is essential for the welfare of the state. Conduct that affects the public, such as the anti-competitive behaviour that is outlawed by the Trade Practices Act , can never really be considered as anything other than serious." and Merkel J on appeal in Schneider v ACCC at 184: "... it is appropriate to emphasise the need to ensure that penalties are not fixed in sums that do not have adequate regard to the nature and extent of the contravention, the losses caused by the contravention and the need to deter not only the offending parties but also others from engaging in similar conduct." I agree with these observations.
Case: Australian Competition and Consumer Commission v Leahy Petroleum (No 2) (2005) 215 ALR 281
Outcome: cited
As a result of the Preston Market incident consumers paid more for bread at the Preston Market stall and were denied the benefit of competition in relation to branded bread. This incident was inherently anti-competitive, although the extent of the anti-competitive consequence cannot be quantified. That does not alter the significance of the contravention. As Merkel J observed in Australian Competition and Consumer Commission v Leahy Petroleum (No 2) (2005) 215 ALR 281 at [20]: "Any determination of the actual quantum of the higher retail prices paid for petrol by reason of the understanding would necessarily be speculative and would be unlikely to serve any useful purpose. The important point is that price-fixing arrangements and understandings of the kind made and given effect to in the present case have been treated by the legislature as per se contraventions of the Act because their inherently anti-competitive nature inevitably harms consumers and has a deleterious and pernicious effect on economic efficiency."
Case: Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR 42-031
Outcome: applied
The observations of Selway J in Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR 42-031 are also pertinent in this context. At [16] Selway J said: "... [T]he actual market outcome in a particular case is not necessarily an important issue in determining the appropriate penalty, except, perhaps, as a matter of aggravation. In relation to price fixing agreements, the law itself assumes that the purpose and/or the effect of the proscribed behaviour is to "substantially lessen competition": s 45A of the TPA and see Brunt Economic Essays on Australian and New Zealand Competition Law (2003) at 133. Given that assumption, it cannot be a factor in mitigation of a pecuniary penalty for engaging in price fixing that no such purpose or effect occurred in the particular case. If it is true that the uncompetitive purpose and effect did not result in a measurable or ascertainable loss to a particular individual, that is necessarily fortuitous and coincidental. It is not a matter of mitigation. Further, as already noted, the reason for the prohibition is the effect of the behaviour on the overall market, not on a particular transaction. Collusive bidding practices are unacceptable whatever their effect in a particular transaction. Those involved in them must expect significant penalties." 58 With respect to the Preston Market incident, consumers were affected in a true economic sense as the price-fixing arrangement resulted in consumers paying a higher price for bread at the Preston Market stall. 59 The Commission submitted that Safeway did not have any substantial trade practices compliance program in place, and to the extent it had any at all, it was ineffective. The Commission contended that Safeway did not call evidence or tender any contemporaneous documents that showed any substantial or systematic program of compliance at the time of the contraventions.
Case: Trade Practices Commission v Carlton United Breweries Ltd (1990) 24 FCR 532
Outcome: cited
The Commission submitted that having regard to the authorities a high penalty is generally appropriate for contraventions of s 46. The Commission referred to the cases of Trade Practices Commission v Carlton United Breweries Ltd (1990) 24 FCR 532 , TPC v CSR, Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR 41-833, Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd No 2 (2002) 201 ALR 618 (and on appeal: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529) and Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd (Administrators Appointed) (2004) ATPR 41-983 (" ACCC v Fila ") in support.
Case: Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR 41-833
Outcome: cited
The Commission submitted that having regard to the authorities a high penalty is generally appropriate for contraventions of s 46. The Commission referred to the cases of Trade Practices Commission v Carlton United Breweries Ltd (1990) 24 FCR 532 , TPC v CSR, Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR 41-833, Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd No 2 (2002) 201 ALR 618 (and on appeal: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529) and Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd (Administrators Appointed) (2004) ATPR 41-983 (" ACCC v Fila ") in support.
Case: Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd No 2 (2002) 201 ALR 618
Outcome: cited
The Commission submitted that having regard to the authorities a high penalty is generally appropriate for contraventions of s 46. The Commission referred to the cases of Trade Practices Commission v Carlton United Breweries Ltd (1990) 24 FCR 532 , TPC v CSR, Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR 41-833, Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd No 2 (2002) 201 ALR 618 (and on appeal: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529) and Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd (Administrators Appointed) (2004) ATPR 41-983 (" ACCC v Fila ") in support.
Case: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529
Outcome: cited
The Commission submitted that having regard to the authorities a high penalty is generally appropriate for contraventions of s 46. The Commission referred to the cases of Trade Practices Commission v Carlton United Breweries Ltd (1990) 24 FCR 532 , TPC v CSR, Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR 41-833, Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd No 2 (2002) 201 ALR 618 (and on appeal: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529) and Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd (Administrators Appointed) (2004) ATPR 41-983 (" ACCC v Fila ") in support.
Case: Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd (Administrators Appointed) (2004) ATPR 41-983
Outcome: cited
The Commission submitted that having regard to the authorities a high penalty is generally appropriate for contraventions of s 46. The Commission referred to the cases of Trade Practices Commission v Carlton United Breweries Ltd (1990) 24 FCR 532 , TPC v CSR, Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR 41-833, Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd No 2 (2002) 201 ALR 618 (and on appeal: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529) and Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd (Administrators Appointed) (2004) ATPR 41-983 (" ACCC v Fila ") in support. 79 Safeway submitted that if the penalties sought by the Commission are imposed, such penalties would be in stark contrast to those imposed in the ACCC v Fila decision, given that the contraventions in that case were more damaging, intentional, sustained and widespread. In ACCC v Leahy I said at [43]: "... All other things being equal, similar conduct should be deserving of similar penalties...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". Little attention has been paid in recent times to the level or quantum of penalty appropriate for contraventions of s 46 of the Act . 80 There are several difficulties in the application of the parity principle. The first is that all of the authorities referred to by the parties differ in some way, and in some instances many ways from the present circumstances. I do not consider that it is useful to use any one case as a determinant of the quantum of penalty for another. 81 Secondly, a number of the authorities referred to were decided when the maximum penalty for corporations for contraventions of ss 45 and 46 was $250,000. This is in contrast to the maximum penalty of $10 million that is now available. If an appropriate case were identified, the question arises as to how one compares a penalty that was imposed at a time when the maximum penalty was different. The Commission approached the issue on a percentage basis, and identified what percentage of the maximum penalty was imposed. I doubt that this is the correct approach, as the Court is not engaged in a mathematical exercise in which precise calculations are derived from specified or identified integers. Rather the Court is engaged in a weighing and balancing exercise.
Case: Mill v The Queen [1988] HCA 70 ; (1988) 166 CLR 59
Outcome: applied
The "totality" principle requires the Court, after determining an appropriate sentence or penalty for specific offences or contraventions in accordance with proper principles, to review the total of the sentences or penalties and consider "whether the aggregate is 'just and appropriate'": Mill v The Queen [1988] HCA 70 ; (1988) 166 CLR 59 at 63, approving of the description of the totality principle in Thomas, Principles of Sentencing , (2nd ed) (1979) pp 56-57. The totality principle finds its genesis in the criminal law but it has also been applied in the context of fixing penalties for contravention of the Act : Trade Practices Commission v Allied Mills Industries Pty Ltd (1981) 37 ALR 256 at 258; ACCC v McMahon at [90]. However, an application of the totality principle in the present circumstances must take into account, and make an allowance for the fact, that there are a number of contraventions of the Act which did not arise out of one, or a single, plan, arrangement, proposal or sequence of conduct. It should also be recognised that one of the explanations for the application of the totality principle is that: "...if the totality of the prisoner's liability to incarceration produces figures that crush any hope of reformation and any reasonable expectation of a useful life after release, the sentences must be made concurrent or partially concurrent with each other to avoid disproportion, given the finite length of human lives": R G Fox and A Freiberg, Sentencing: State and Federal Law in Victoria, (2nd ed) (1999) pp 229-230. This rationale has little application in the context of the determination of the appropriate level of penalties for contraventions of Pt IV of the Act and in particular, in relation to large companies with very substantial financial resources. This is not to say that the determination of the appropriate penalties should be disproportionate to the severity and significance of the contraventions established. The total of penalties fixed for separate and discrete contraventions of Pt IV of the Act should not be disproportionate to the severity and significance of the various contraventions which have been established. Nevertheless, it must be remembered that there are separate and discrete contraventions not linked in point of time or causation.
Case: Trade Practices Commission v Allied Mills Industries Pty Ltd (1981) 37 ALR 256
Outcome: cited
The "totality" principle requires the Court, after determining an appropriate sentence or penalty for specific offences or contraventions in accordance with proper principles, to review the total of the sentences or penalties and consider "whether the aggregate is 'just and appropriate'": Mill v The Queen [1988] HCA 70 ; (1988) 166 CLR 59 at 63, approving of the description of the totality principle in Thomas, Principles of Sentencing , (2nd ed) (1979) pp 56-57. The totality principle finds its genesis in the criminal law but it has also been applied in the context of fixing penalties for contravention of the Act : Trade Practices Commission v Allied Mills Industries Pty Ltd (1981) 37 ALR 256 at 258; ACCC v McMahon at [90]. However, an application of the totality principle in the present circumstances must take into account, and make an allowance for the fact, that there are a number of contraventions of the Act which did not arise out of one, or a single, plan, arrangement, proposal or sequence of conduct. It should also be recognised that one of the explanations for the application of the totality principle is that: "...if the totality of the prisoner's liability to incarceration produces figures that crush any hope of reformation and any reasonable expectation of a useful life after release, the sentences must be made concurrent or partially concurrent with each other to avoid disproportion, given the finite length of human lives": R G Fox and A Freiberg, Sentencing: State and Federal Law in Victoria, (2nd ed) (1999) pp 229-230. This rationale has little application in the context of the determination of the appropriate level of penalties for contraventions of Pt IV of the Act and in particular, in relation to large companies with very substantial financial resources. This is not to say that the determination of the appropriate penalties should be disproportionate to the severity and significance of the contraventions established. The total of penalties fixed for separate and discrete contraventions of Pt IV of the Act should not be disproportionate to the severity and significance of the various contraventions which have been established. Nevertheless, it must be remembered that there are separate and discrete contraventions not linked in point of time or causation.
Case: McDonald v The Queen (1994) 48 FCR 555
Outcome: cited
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.
Case: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993
Outcome: cited
The Commission and Mr Jones correctly point out that imposing penalties pursuant to s 76 of the Act is a matter for the Court. When a court is presented with an agreed penalty, the proper task is to determine whether the proposed penalty comes within the permissible range: NW Frozen Foods at 290-291 per Burchett and Kiefel JJ and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993 per Branson, Sackville and Gyles JJ at 48,627. 88 I have considered whether it is appropriate to give Mr Jones any discount in penalty by virtue of his admission of the contravention at Preston market. Once the Full Court made its findings with respect to Mr Jones' role in the Preston market incident, Mr Jones had little option but to admit liability. In those circumstances, it cannot be said that Mr Jones' admission has saved any substantial amount of court time. 89 There was no evidence before me as to Mr Jones' financial position. Accordingly I am unable to take into account the ability of Mr Jones to pay any particular penalty.
Case: Willis &amp; Co v Baddeley [1892] 2 QB 324
Outcome: applied
careful consideration, I have come to the conclusion, not without some hesitation, that the Russian Federation is the 'real,' applicant/plaintiff in the cross-claim because the claims made therein are brought and made on behalf of the Russian Federation by FKP and FGUP, and not in their own right: see Willis &amp; Co v Baddeley [1892] 2 QB 324; Abu Dhabi National Tanker Co v Product Star Shipping Ltd [1992] 2 All E.R. 20, [1991] 2 Lloyd's Rep. 508, cf James Nelson &amp; Sons Ltd v Nelson Line (Liverpool) Ltd [1906] 2 KB 217.
Case: Abu Dhabi National Tanker Co v Product Star Shipping Ltd [1992] 2 All E.R. 20
Outcome: applied
careful consideration, I have come to the conclusion, not without some hesitation, that the Russian Federation is the 'real,' applicant/plaintiff in the cross-claim because the claims made therein are brought and made on behalf of the Russian Federation by FKP and FGUP, and not in their own right: see Willis &amp; Co v Baddeley [1892] 2 QB 324; Abu Dhabi National Tanker Co v Product Star Shipping Ltd [1992] 2 All E.R. 20, [1991] 2 Lloyd's Rep. 508, cf James Nelson &amp; Sons Ltd v Nelson Line (Liverpool) Ltd [1906] 2 KB 217.
Case: James Nelson &amp; Sons Ltd v Nelson Line (Liverpool) Ltd [1906] 2 KB 217
Outcome: referred to
careful consideration, I have come to the conclusion, not without some hesitation, that the Russian Federation is the 'real,' applicant/plaintiff in the cross-claim because the claims made therein are brought and made on behalf of the Russian Federation by FKP and FGUP, and not in their own right: see Willis &amp; Co v Baddeley [1892] 2 QB 324; Abu Dhabi National Tanker Co v Product Star Shipping Ltd [1992] 2 All E.R. 20, [1991] 2 Lloyd's Rep. 508, cf James Nelson &amp; Sons Ltd v Nelson Line (Liverpool) Ltd [1906] 2 KB 217.
Case: Commonwealth v Northern Land Council (1991) 30 FCR 1
Outcome: cited
I have indicated at [2(a)], Spirits seeks an order for discovery 'pursuant to O 15A r 8 or otherwise '. I do not regard this alternative basis as, in substance and effect, a request for third party discovery pursuant to O 15A r 8 of the Federal Court Rules . It is a totally discrete basis founded on s 23 of the Federal Court Act ; wide enough to cover orders requiring the discovery, production and inspection of documents: Commonwealth v Northern Land Council (1991) 30 FCR 1 per Black CJ, Gummow and French JJ; see also Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2002] FCA 581 ; at the same time, accepting that the Court has a general power under s 23 to prevent the abuse or frustration of its processes in relation to matters coming within its jurisdiction ( Hunter v Leahy [1999] FCA 1075 ; (1999) 91 FCR 214) or where it is otherwise necessary to protect the integrity of the processes of the Court: CSR Ltd v CIGNA Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345 at 391 392; Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380.
Case: Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2002] FCA 581
Outcome: cited
I have indicated at [2(a)], Spirits seeks an order for discovery 'pursuant to O 15A r 8 or otherwise '. I do not regard this alternative basis as, in substance and effect, a request for third party discovery pursuant to O 15A r 8 of the Federal Court Rules . It is a totally discrete basis founded on s 23 of the Federal Court Act ; wide enough to cover orders requiring the discovery, production and inspection of documents: Commonwealth v Northern Land Council (1991) 30 FCR 1 per Black CJ, Gummow and French JJ; see also Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2002] FCA 581 ; at the same time, accepting that the Court has a general power under s 23 to prevent the abuse or frustration of its processes in relation to matters coming within its jurisdiction ( Hunter v Leahy [1999] FCA 1075 ; (1999) 91 FCR 214) or where it is otherwise necessary to protect the integrity of the processes of the Court: CSR Ltd v CIGNA Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345 at 391 392; Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380. First, there must be a real likelihood that the party, in this case FKP and FGUP, who is to take steps to obtain access to and discover the documents which are in the possession, power or control of a third party, would be given access to the documents upon request: See Sabre at 432 433. This likelihood must be established by evidence: Gambro at [8], [17] [19]. In the present case, Spirits has made no attempt to establish this. There is nothing in the evidence from which the inference could be drawn that any documents within the very broad categories requested by Spirits would be provided by the Russian Federation or its ministries, agencies and instrumentalities.