Case: Australian Competition and Consumer Commission v Humax Pty Ltd [2005] FCA 706
Outcome: cited
Engaging in resale price maintenance is engaging in anti-competitive conduct, which the legislature has prohibited in the public interest. As Merkel J said in Australian Competition and Consumer Commission v Humax Pty Ltd [2005] FCA 706 (" Humax ") at [5], engaging in resale price maintenance is a serious offence. This is apparent from the magnitude of the pecuniary penalties that corporations, and those through whom they act, may face for contravention of s 48 of the Act . 11 The consent orders proposed by the parties include: (a) declarations under s 21 of the Federal Court of Australia Act 1976 (Cth) that the particular conduct in which each of the respondents engaged constituted a contravention of the Act ; (b) injunctions restraining each of the respondents from engaging in proscribed conduct for a period of three years from the date of the order; (c) orders requiring TEAC to establish an education and compliance programme for its employees; (d) an order that TEAC pay a pecuniary penalty of $175,000 in four instalments; and (e) an order that Mr Allison pay a pecuniary penalty of $15,000 in four instalments. There is to be a further order, providing for what is to happen in the event of default in the payment of any instalment of penalty. 14 The proposed probation order in this case is very like the probation orders made by Merkel J in Humax and by Tracey J in Digital Products. Section 86D contemplates orders of the kind proposed as adverse publicity orders: see orders 8 and 9 in the proposed minute of orders. 28 I also accept that the proposed penalties are consistent with the proper application of the totality and parity principles: compare Digital Products and Dataline at [64]-[75]. I was referred to a schedule of previous determinations. Whilst I have had regard to it, I have also borne in mind the observations in Dataline , where a Full Court said (at [67]-[68]): [T] he Court is confirmed in the view that there is little to be gained in undertaking ... a detailed comparative analysis of the conduct of each corporation in the identified cases, the extent to which particular officers of those corporations engaged in the contravening conduct or the scale and dimension of the conduct. The constellation of circumstances, essential character of the conduct and the factors to be weighed by the Court are inevitably sufficiently different in each case that previous determinations ultimately provide little utility in precisely informing the appropriate pecuniary penalty to be imposed in any particular contravention. However, an assessment of previous determinations in relation to resale price maintenance conduct may provide a high level broad range within which an appropriate pecuniary penalty may be imposed having regard to the character and content of the contravention and other considerations reflecting some elements broadly consistent with the evidence in the particular case. After making these observations, the Court undertook an analysis of several cases with sufficiently similar facts to provide a high level broad range of comparison. The penalties imposed in a number of cases ( Australian Consumer and Competition Commission v Dermalogica Pty Ltd [2005] 215 ALR 482 (" Dermalogica "), Humax , Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432 , Australian Competition and Consumer Commission v Westminster Retail Pty Ltd (in liquidation) [2005] FCA 1299 , Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 , Australian Competition and Consumer Commission v Cambur Pty Ltd [2006] FCA 1027 , Dataline (upholding the decision in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665), Jurlique , and Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liquidation) [2005] FCA 1212) give a high level broad range of comparison for this case. 30 I accept that, in the circumstances mentioned above and on the financial material before the Court, it is appropriate to order the payment of penalties by instalments. The parties have agreed to the inclusion in orders of a default provision. The Court made similar orders in Digital Products and Humax .