Case: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285
Outcome: discussed
s 76 of the Act, it is for the Court to determine the appropriate pecuniary penalty. At the same time, the Court can place weight on the pecuniary penalties proposed by the parties. The relevant principle and the reason for it were stated by the Full Court of this Court in the following passage in the reasons for judgment of Burchett and Kiefel JJ in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 (" NW Frozen Foods ") at 290-291: "The Act places on the shoulders of the Court the responsibility to determine the 'appropriate' penalty in each particular case, having regard to 'all relevant matters' including the matters specified in the section. But effects upon the functioning of markets, and other economic effects, will generally be among the most significant matters to be considered as relevant, so that the Court is likely to be assisted greatly by views put forward by the Australian Competition and Consumer Commission, or by economists called on behalf of the parties. Since the decision in Trade Practices Commission v Allied Mills Industries Pty Ltd [(1981) [1981] FCA 142 ; 60 FLR 38 ; 37 ALR 256] , it has been accepted that both the facts, and also views about their effect, may be presented to the Court in agreed statements, together with joint submissions by both the Commission and a respondent as to the appropriate level of penalty. Because the fixing of the quantum of a penalty cannot be an exact science, the Court, in such a case, does not ask whether it would without the aid of the parties have arrived at the precise figure they have proposed, but rather whether their proposal can be accepted as fixing an appropriate amount. There is an important public policy involved. When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all the circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, or except in a clear case." Section 76(1) of the Act requires the Court to consider all relevant matters in determining the appropriate pecuniary penalty, including the nature and extent of the contravening conduct, the amount of loss and damage caused by the contravening conduct, the circumstances in which the contravening conduct took place and whether the contravener had previously been found by the Court to have engaged in similar conduct. In NW Frozen Foods , Burchett and Kiefel JJ referred (at 292) to these matters as "elaborations of the statutory requirement to consider 'the circumstances in which the act or omission took place'". In addition to the above matters, the trial judge (Heerey J; see Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd [1996] ATPR 41-515) considered (at 42,444-42,445) the financial position of the respondents and the deterrent effect of the proposed penalty. It will be seen that, in the passage quoted from NW Frozen Foods and set out in [64] above, Burchett and Kiefel JJ emphasised the importance of the effects of the conduct on the functioning of the market, and other economic effects.