Case: Trade Practices Commission v Allied Mills Industries Pty Ltd (No 4) (1981) 37 ALR 256
Outcome: applied
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). 32 The Full Court added at 584 [185] that, if s 76(3) did not apply, the totality principle should have been applied because of the interlocking nature of the conduct involved in the two contraventions: 'If it could be said that the conduct relevant to the two contraventions was not the same conduct for the purpose of s 76(3) , we would be of the opinion that his Honour's discretion in calculating the appropriate penalty to be imposed miscarried, in that his Honour failed to have regard to the interlocking nature of the conduct involved in the two contraventions and to the need to set a total penalty appropriate in the circumstances. On the particular facts of this case, it was not appropriate to impose a substantive penalty for each breach of the Act arising as they did out of the one transaction. The appropriate course was to set a penalty for the conduct imposed in respect of one breach and to take the other breach into account: Trade Practices Commission v Allied Mills Industries Pty Ltd (1981) 37 ALR 256; 60 FLR 1 per Sheppard J at FLR 40; Trade Practices Commission v TNT Australia Pty Ltd , above, at 40,169; McDonald v R (1994) 48 FCR 555; 120 ALR 629. For the reasons we have set out above, we consider that the appropriate total of penalty would have been a sum of $500,000.' The penalty of $500,000 was the same figure that the Full Court considered to be the appropriate penalty on the footing that s 76(3) did apply. 42 If the CEPU's conduct that is relevant to Edison's contravention of s 45EA can be distinguished from its conduct in relation to the s 45E(3) contravention, with the consequence that s 76(3) does not apply, I consider that the approach described in Allied Mills , Advance Bank and in McPhee at 584 [185] should be applied in the circumstances of this case. In substance, the CEPU engaged in a single course of conduct that was related and interlocking and which involved it in both contraventions. To my mind, it would be artificial to distinguish between the conduct that is relevant to the making of the arrangement and that which is relevant to Edison's giving effect to the arrangement. The CEPU's conduct in relation to the two contraventions is so interconnected that the appropriate course is to apply the totality principle to set a penalty for the CEPU's accessorial conduct in respect of one breach and to take the CEPU's involvement in the other breach into account. Adopting that approach, I have concluded that the appropriate penalty would not differ from that which I would impose on the basis that s 76(3) applies.