Case: Australian Consumer and Competition Commission v Jurlique International Pty Ltd [2007] FCA 79
Outcome: cited
The relevant principles governing the imposition of pecuniary penalties are discussed in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 (" Dataline ") at [60]-[75]; Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,151-52, 154; NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission (1997) 71 FCR 285 at 290-295; J McPhee &amp; Son (Aust) Pty Ltd v Australian Consumer and Competition Commission (2000) 172 ALR 532; and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 (" Mobil Oil ") at [51]-[58]. These authorities indicate that further relevant matters include: (a) the size of the contravening company; (b) the degree of power the company has, as evidenced by its market share and ease of entry into the market; (c) whether the conduct was systematic, deliberate, or covert; (d) the period over which the conduct occurred; (e) the effect on the functioning of the market and other economic effects of the conduct; (f) whether the contravention arose out of the conduct of senior management or at a lower level; (g) whether the company has a corporate culture conducive to compliance with the Act , as evidenced by educational programs and discipline, or other corrective measures in response to an acknowledged contravention; and (h) whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. See also Australian Consumer and Competition Commission v Jurlique International Pty Ltd [2007] FCA 79 (" Jurlique ") at [51]; Australian Consumer and Competition Commission v Knight [2007] FCA 1011 (" Knight ") at [70]; and Australian Consumer and Competition Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 (" Visy Industries ") at [303]. 17 Ordinary sentencing principles are relevant, including specific and general deterrence. Thus in Australian Consumer and Competition Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 at [39], Goldberg J concluded: The penalty imposed must be substantial enough that the party realises the seriousness of its conduct and is not inclined to repeat such conduct. Obviously the sum required to achieve this object will be larger where the Court is setting a penalty for a company with vast resources. However, as specific deterrence is only one element and general deterrence must also be achieved, consideration of the party's capacity to pay must be weighed against the need to impose a sum which members of the public will recognise as significant and proportionate to the seriousness of the contravention. What is known in the criminal law as the "totality principle" is also relevant. That is, the total penalty for related offences ought not to exceed what is appropriate for the entire contravening conduct involved: see Jurlique at [52]; Trade Practices Commission v TNT Australia Pty Ltd &amp; Ors (1995) ATPR 41-375 at 40,169; Knight at [73]; and Visy Industries at [304]. The "parity principle" is also relevant, namely, all other things being equal, like cases should be treated alike. 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.