mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Competition and Consumer Commission v Target Australia Pty Ltd [2001] FCA 1326
Outcome: cited
advertising may, of course, raise public awareness as to the type of conduct that may contravene the TP Act, as well as the outcome of the particular case: see per Lee J in Australian Competition and Consumer Commission v Target Australia Pty Ltd [2001] FCA 1326 at [21] . That case involved orders, including corrective advertising, proposed to be made by consent. In the particular circumstances, I do not consider that factor in the overall balance warrants the making of orders for corrective advertising. Consumers are unlikely to be further exposed to such contravening conduct on the part of Harris Scarfe for the reasons already given. Competitors will no doubt become aware of the outcome of this case, and take account of its reasons in their further advertising. Hence, consumers more generally are also not likely to benefit from corrective advertising specific to Harris Scarfe's contravening conduct unless, first, a competitor engaged in similar conduct and the connection between that advertising and the corrective advertising specific to Harris Scarfe was made. I therefore decline to order corrective advertising. The final package of orders sought by the ACCC under s 86C involve Harris Scarfe being required to revise and review its internal operations in relation to its compliance with the TP Act. Specifically, the package of orders would require: (1) Harris Scarfe to appoint a senior employee as its "Internal Review Manager"; (2) Harris Scarfe, on the recommendation of its Internal Review Manager, to retain an appropriately qualified and experienced Independent Reviewer (a person not previously involved in the design or implementation of the compliance program); (3) the Independent Reviewer to review the compliance program and the process of producing the sale catalogue to determine why the contraventions occurred, and to recommend steps to be taken, including revision of the compliance program, to ensure similar or related conduct does not occur in the future; (4) Harris Scarfe to provide a copy of the Independent Reviewer's report to the ACCC; (5) Harris Scarfe to implement the Independent Reviewer's recommendations as it "considers reasonably necessary" to ensure it does not engage in the contravening conduct or any similar or related conduct in the future; (6) Harris Scarfe to report to the ACCC of the steps it has taken pursuant to (5) or to report that it has decided not to implement any of those recommendations. Then, if the ACCC did not agree with Harris Scarfe's actions, the ACCC is to be given the right to apply to the Court "regarding the adequacy of any step taken by Harris Scarfe to review its internal operations". Presumably, the expectation is that the Court would then be asked to determine whether some further orders in relation to Harris Scarfe's internal systems should be directed by the Court.
Case: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076
Outcome: considered
The cases have, in addition, referred to other matters as relevant in the determination of the appropriate pecuniary penalty. French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152, a Full Court of Burchett, Carr and Kiefel JJ in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285, and a Full Court of Black CJ, Lee &amp; Goldberg JJ in J McPhee &amp; Son (Aust) Pty Ltd v Australian Consumer and Competition Commission (2000) 172 ALR 532 identify, not exclusively, as further factors relevant to the determination of penalty: (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. 83 In Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152, French J said: 'The principal, and I think probably the only object of the penalties imposed by s 76 , is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act.'
Case: J McPhee &amp; Son (Aust) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532
Outcome: considered
The cases have, in addition, referred to other matters as relevant in the determination of the appropriate pecuniary penalty. French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152, a Full Court of Burchett, Carr and Kiefel JJ in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285, and a Full Court of Black CJ, Lee &amp; Goldberg JJ in J McPhee &amp; Son (Aust) Pty Ltd v Australian Consumer and Competition Commission (2000) 172 ALR 532 identify, not exclusively, as further factors relevant to the determination of penalty: (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.
Case: Trade Practices Commission v TNT Australia Pty Ltd &amp; Ors (1995) ATPR 41-375
Outcome: cited
The parties acknowledge that what is known in criminal law as the 'totality principle' should apply; namely that the total penalty for related offences ought not to exceed what is appropriate for the entire contravening conduct involved. The applicability of the 'totality principle' to penalties for contraventions of the Act was accepted by Burchett J in Trade Practices Commission v TNT Australia Pty Ltd &amp; Ors (1995) ATPR 41-375 at 40,169. 53 While all the factors referred to above have to be considered in the context of the circumstances of a particular case, some of those factors are of particular relevance in the assessment of appropriate penalties in the present case.
Case: Australian Competition and Consumer Commission v Dermologica Pty Ltd (2005) 215 ALR 482
Outcome: considered
The contravening conduct is in connection with premium skin care products. Approximately three quarters of the Jurlique Products sold in Australia by value of retail sales are skin care products. The remaining quarter of Jurlique Products sales by retail value relate to hair care, essential oils, and tincture products. Skin care products were the subject of the decision Australian Competition and Consumer Commission v Dermologica Pty Ltd (2005) 215 ALR 482 (' Dermologica '), and it is right to note that the Commission considers the objective of general deterrence to be of particular importance in relation to the skin care product industry. 55 However, it is also relevant to note that Jurlique Products comprise a small proportion of total skin care product sales in Australia, but their share of premium skin care products is larger. 56 The majority of the contraventions by the Jurlique Companies involve specialist retailers, including the company outlets, franchise outlets, and the Jin Hsing Company. The contravening conduct concerning price lists also involves pharmacies and salons. 99 It is relevant in this context to refer to Dermologica . The report indicates that Dermologica, in the financial year 2001/2002, had sales of nearly $15 million and profit before income tax in the order of $1.2 million. In the present case, in the 2003/2004 financial year, the Jurlique Companies' revenue was four times larger than Dermologica's income in 2001/2002, and the Jurlique Companies' profit before tax was considerably higher than Dermologica's. 100 As to the degree of market power of the Jurlique companies, I have already referred to the lack of market power of Jurlique in the market of premium skin care products. The joint submissions of the parties acknowledge at par 119: 'Jurlique is not alleged to have market power against its competitors. Jurlique's share of sales is low in the skin care product industry however Jurlique Products are highly differentiated and offers one of only a few ranges of products claiming to have natural ingredients and to be made in Australia. Customers' perception of a brand's image, which is expensive to create and maintain through advertising and marketing, differentiates Jurlique Products from many competitors' products. Accordingly, some customers are willing to pay more for particular skin care products based on their perception of image.' 101 However, it is also relevant to note the submission at par 120 that: 'The Jurlique Companies engaged in resale price maintenance conduct against Jurlique Franchisees in circumstances where the threat to remove stock from their stores would have destroyed their investment in a franchise store. Because Jurlique Franchisees made a substantial investment in each franchise store, Jurlique Companies had significant power in respect of its Jurlique Franchisees.'
Case: Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091
Outcome: cited
In Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091 at 17,896, Smithers J made plain so long ago as 1978, ' the principal object of the imposition of a penalty under s 76 is deterrence '.
Case: Trade Practices Commission v Sony (Aust) Pty Ltd &amp; Ors (1990) ATPR 41-053
Outcome: cited
Concerning general deterrence, Pincus J, as long ago as 1990, commented in Trade Practices Commission v Sony (Aust) Pty Ltd &amp; Ors (1990) ATPR 41-053 at 51,691: 'When one finds deliberate breaches of the price maintenance provisions of the Trade Practices Act ... after years of attempts to enforce compliance with these provisions, one can only suspect that the penalties have not been taken very seriously. Their deterrent effect has been insufficient.'
Case: Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (2001) ATPR 41-815
Outcome: cited
More recently, in 2001, Finkelstein J said in Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (2001) ATPR 41-815 at par 13: 'If general deterrence is the principal object of imposing a penalty, the number of cases that still come before the court, and the seriousness of the conduct that is involved in some of them, suggests that past penalties are not achieving that object. For a penalty to have the desired effect, it must be imposed at a meaningful level. Most antitrust violations are profitable. Accordingly, the penalty must be at a level that a potentially-offending corporation will see as eliminating any prospect of gain.'
Case: Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR 42-031
Outcome: cited
In relation to general deterrence in the context of price fixing (where there is a clear and demonstrable nexus between the contravening conduct and the infliction of loss or damage on consumers), Selway J in Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR 42-031 at par 15 said: 'Once it is understood that deterrence, and particularly general deterrence, is the primary principle in the imposition of penalty for price fixing, then at least two conclusions flow from that. First, it means that penalties for collusive price fixing will need to be substantial and significant. This is, of course, reflected in the size of the maximum penalty upon corporations of $10 million. However, it also follows logically from the principle. Collusive price fixing, particularly between tenderers is difficult to detect. Public enforcement often only occurs with "a tip from an affected party or an insider" (See Marshall &amp; Meurer, "Bidder Collusion and Antitrust Law: Refining the Analysis of Price Fixing to Account for the Special Features of Auction Markets" (2004) 72 AntiTrust Law Journal 83 at 101). Given these difficulties and the potential for large profits from such practices there is a chance that those in the market place might be prepared to factor the risk of a low penalty into its pricing structure as a 'business cost'. That would be inimical to the statutory purpose of ensuring that the practices do not occur. The penalty must be sufficiently high that a business, acting rationally and in its own best interest, will not be prepared to treat the risk of such a penalty as a business cost.' 88 Because the Act defines resale price maintenance as a per se contravention, the Act requires the Court to apply similar considerations to the conduct in the calculation and imposition of appropriate penalties for the resale price maintenance. 89 There is, of course, a need to consider the capacity of a contravening party to pay in the calculation of the appropriate penalty, while also giving effect to the primary obligation of the Court to impose a penalty which satisfies the requirement of general deterrence.
Case: Australian Competition &amp; Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301
Outcome: cited
Goldberg J in Australian Competition &amp; Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 said at par 39: '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 specified 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.' 91 Next, it is important to note that the resale price maintenance conduct occurred over a long period of time. The first instance in the pleadings was in 1991, with the last conduct, the subject of these proceedings, being in 2003. The majority of the conduct the subject of the contraventions occurred during 1999, 2001 and 2002. These proceedings were filed on 14 August 2006. Within the six year time frame prior to the institution of these proceedings there are more than 30 resale price maintenance contraventions of the Act. That conduct affected Jurlique franchisees and retailer outlets throughout Australia and also involved international customers, both within Australia and overseas. 92 Dr Klein, during the period of the relevant contraventions for penalty, was the most senior executive and owner of the Jurlique Companies. He set the policy on discounting, was directly involved in aspects of the drafting of Jurlique Franchise Agreements, in negotiating the schedules and terms with franchisees, and he had direct contact with the stores. He was involved in all aspects of the contravening conduct. The other contraventions did not involve ongoing conduct.
Case: Craig Mostyn &amp; Co v Old Valley Pty Ltd [2004] FCA 1083 ; 139 FCR 477
Outcome: referred to
Company, in fact, received all but $350,000 of $3,500,000 from the plaintiffs on the basis of the charge. Those funds would not have been advanced had the charge not been made. Those funds were received by the Company for its benefit, and therefore, for the benefit of unsecured creditors, including employees. On one view, the unsecured creditors, therefore, would have derived a windfall benefit by the inadvertence that led to the delay in giving notice of the charge. It is not unfair or inconsistent with the general policy of the law and the rights of creditors that they might be deprived of that windfall gain (see Craig Mostyn &amp; Co v Old Valley Pty Ltd [2004] FCA 1083 ; 139 FCR 477 at [52] ). In all of the circumstances, I consider that it is appropriate to accede to the plaintiffs' application. Accordingly, I propose to make orders as sought by the plaintiffs. The plaintiffs have joined the Company and the administrators as defendants. The plaintiffs are seeking orders in the nature of an indulgence. It is appropriate, therefore, that the plaintiffs should pay the defendants' costs. The plaintiffs do not oppose such an order. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 14 August 2009 Counsel for the Plaintiffs: Mr D Robinson SC Solicitor for the Plaintiffs: Holding Redlich Solicitor for the Defendants: Sparke Helmore Date of Hearing: 14 August 2009 Date of Judgment: 14 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/990.html
Case: SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 255 ALR 407
Outcome: distinguished
is not necessary to explore other issues, although I note in passing that the inquiries made by the Tribunal of the friend and of DFAT were first time inquiries of those sources and could not be characterised as invitations to them to provide information additional to information that they had previously given to the Tribunal; cf SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 255 ALR 407 at [99] , [100]; SZKTI at [4].
Case: Shelton v NRMA Limited (2005) 51 ACSR 278
Outcome: considered
"contrary to the interests" provision now contained in subpar (d) of s 232 has a separate and distinct area of operation from the "oppression" provisions in subpar (e) of s 232. The manner in which a company is being administered and in which its affairs are conducted may fall within the category of conduct contrary to the interests of the company's members as a whole although it may not be described as oppressive, unfairly prejudicial to, or unfairly discriminatory against members of the company: Turnbull v National Roads &amp; Motorists' Association Limited [2004] NSWSC 577 ; (2004) 50 ACSR 44 at 52, 57; Campbell v BackOffice Investments Pty Ltd [2008] NSWCA 95 ; (2008) 66 ACSR 359 at 400. (See also Re Spargos Mining NL (1990) 3 ACSR 1 at 42; Shelton v NRMA Limited (2005) 51 ACSR 278.) An example of such conduct may be found where a company is formed for the purpose of undertaking particular activities but the directors and management disregard those activities and direct the company into different commercial areas. An essential feature of the "oppression" provisions in subpar (e) of s 232 is whether or not there has been commercial unfairness. The manner in which the Court should approach the issue whether there has been commercial unfairness was conveniently identified by Tamberlin J in Shelton v NRMA Limited (supra) as follows at 284 5: "It is not practicable to delineate the numerous ways in which oppressive conduct may be established. The court will generally look at the overall course of conduct and consider whether it is so unfair that reasonable directors would not consider it fair. If directors exercise a power so as to impose a disability or burden on a member that is unfair according to ordinary standards of reasonableness and fair dealing, then such conduct may be described as oppressive. The question is one of fact and degree for the Court to determine, having regard to the view the directors have formed themselves, and allowing for any special skill or knowledge possessed by the directors. The test of unfairness is objective: see Wayde v NSW Rugby League Limited [1985] HCA 68 ; (1985) 180 CLR 459 at 472 (" Wayde ") per Brennan J; Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573. The court should not take a narrow approach to cases of oppression. It is necessary for the court to come to a conclusion that there has been conduct unfairly prejudicial to or unfairly discriminatory or oppressive to a member before it makes an order to this effect: see John J Starr (Real Estate) Pty Ltd v Andrew (Australasia) Pty Limited (1991) 6 ACSR 63 , and the authorities there collected at 65-67."
Case: Turnbull v NRMA Limited [2004] NSWSC 577 ; (2004) 50 ACSR 44
Outcome: cited
"contrary to the interests" provision now contained in subpar (d) of s 232 has a separate and distinct area of operation from the "oppression" provisions in subpar (e) of s 232. The manner in which a company is being administered and in which its affairs are conducted may fall within the category of conduct contrary to the interests of the company's members as a whole although it may not be described as oppressive, unfairly prejudicial to, or unfairly discriminatory against members of the company: Turnbull v National Roads &amp; Motorists' Association Limited [2004] NSWSC 577 ; (2004) 50 ACSR 44 at 52, 57; Campbell v BackOffice Investments Pty Ltd [2008] NSWCA 95 ; (2008) 66 ACSR 359 at 400. (See also Re Spargos Mining NL (1990) 3 ACSR 1 at 42; Shelton v NRMA Limited (2005) 51 ACSR 278.) An example of such conduct may be found where a company is formed for the purpose of undertaking particular activities but the directors and management disregard those activities and direct the company into different commercial areas.