Case: Australian Competition and Consumer Commission v SIP Australia Pty Limited (2003) ATPR 41-937
Outcome: applied
I also draw in aid the approach I took in Australian Competition and Consumer Commission v SIP Australia Pty Limited (2003) ATPR 41-937 at [57]-[58]: "There is no basis for considering that there should be any parity with, or relationship between, the penalties imposed upon Baker Bros and its two directors and the penalties to be imposed upon SIP and Mr Ippaso. In the present circumstances there are significant differences between the position of Baker Bros and its directors on the one hand and SIP and Mr Ippaso on the other. In particular, Baker Bros admitted its contraventions at a very early stage of the proceeding, as did its directors in relation to their participation in those contraventions. Baker Bros was a much smaller company than SIP by reference to factors such as financial resources and commercial resources generally and SIP's market share between 1994 and 1998 and its turnover were significantly greater than Baker Bros' turnover. Further, Baker Bros and its two directors actively co-operated with the Commission in finalising the case against them and assisting it in prosecuting its case against SIP and Mr Ippaso. Although SIP and Mr Ippaso co-operated with the Commission when s 155 notices were served on them, they contested the proceeding. They are not to be penalised for so doing but they are not entitled to any discount in respect of co-operating with the Commission so as to obviate the necessity for a trial. Further, although Baker Bros committed the contraventions, it did so only after significant commercial pressure was placed upon Messrs Baker by Mr Ippaso. The role played by Mr Ippaso and SIP in procuring and implementing the March 1994 agreement was significantly different in that it was the initiating factor and the factor which drove the negotiations which culminated in the agreement. This difference warrants SIP and Mr Ippaso being given significantly and substantially greater penalties than Baker Bros and their directors. Mr Ippaso's culpability is significantly greater than that of the two directors of Baker Bros. I am therefore satisfied that a more substantial penalty should be imposed upon SIP and Mr Ippaso than was imposed upon Baker Bros and Messrs Baker." 74 There are significant differences between the position of Tip Top and the position of Safeway. On one view comparing their positions is akin to comparing apples with oranges. In particular, Tip Top admitted the contraventions at an early stage and co-operated with the Commission and so became entitled to a significant discount in the penalties to be imposed. Further, the penalties imposed upon Tip Top were based on an agreed statement of facts, which were not tested by cross-examination. It is inappropriate to use those facts, which were agreed, as relevant to Safeway's position in this penalty hearing. 75 The allegations against Tip Top were contraventions of ss 45 and 48 , and not s 46. The contraventions differed in fundamental ways: &#8226; Tip Top's contraventions did not involve the exercise of substantial market power, whereas it was a fundamental element of Safeway's four s 46 incidents that it both had, and took advantage of, market power in order to deter or prevent competitive conduct; &#8226; Tip Top's conduct was a response to the deletion of its products by Safeway. In the four incidents, Safeway's purpose was to deter or prevent supply, whereas Tip Top did not have such a purpose.