Case: Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd [1999] FCA 1175
Outcome: referred to
consideration, which is not specifically referred to in s 16A of the Crimes Act but which has assumed considerable importance in the case law which has developed in relation to Part V of the Act , has been general deterrence. The absence of specific reference to general deterrence has not been interpreted as meaning that it is not a relevant consideration. The contrary is true: R v Sinclair (1990) 51 A Crim R 418 at 430. In many cases decided under the Act , this Court has placed considerable emphasis on general deterrence as being an important factor to be brought to account where penalties or sentences are imposed for contraventions of Part V. This approach finds support in the expressed object of the Act 'to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection' (see s 2) and the significant monetary penalties, provided for in the Act , for contravention of consumer protection provisions such as those presently under consideration. It has become accepted that the imposition of substantial penalties for breaches of provisions which are designed to protect consumers, will serve to alert members of the business community to the provisions of the Act and the serious consequences which may flow from their contravention: see eg Pugh v Clark Rubber Limited (1993) ATPR 41-258 at 41, 473; Miller v Cunningham's Warehouse Sales Pty Ltd (1994) ATPR 41-321 at 42, 269; Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd [1999] FCA 1175 at [24] . This principle has been applied even where defendant companies have gone into liquidation and there is no realistic prospect of a substantial monetary penalty ever being paid: see eg Australian Competition and Consumer Commission v Vales Wine Company Pty Ltd (1976) ATPR 41-528 at 42, 776; Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd [2004] FCA 376 at [23] - [25] . In Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd [1999] FCA 1175 at [10] - [12] Weinberg J noted certain observations of French J in Gardam v Splendid Enterprises Pty Ltd (1987) ATPR 40-779 at 48, 502 to 48, 503 which he found to be a helpful statement of the principles which governed the determination of penalties to be fixed for breaches of the consumer protection provisions of the Act . His Honour held that these principles remained relevant notwithstanding the introduction of s 16A of the Crimes Act . The relevant observations of French J in Gardam are: 'The appropriate level of penalty to be fixed will vary according to the circumstances of each case and the class of relevant considerations is not closed. Nevertheless it appears to be well established that the following matters are relevant to the punishment to be imposed. 1 The objectives of the Act . 2 The importance of any untrue statements made. 3 The degree of wilfulness or carelessness involved in making such a statement. 4 The extent to which the statements in question depart from the truth. 5 The degree of their dissemination. 6 The result in prejudice to consumers. 7 Whether any and if so what efforts have been made to correct the statements. 8 The need to impose deterrent penalties. The sections of the Act which provide for the declaration of consumer product safety standards and their enforcement are plainly of the highest importance. ... In the present case the offences were not committed wilfully or with any intention to deceive. Their commission was the product of carelessness and lacks management. As Smithers J said in Geoffrey John Eva v Mazda Motors (Sales) Pty Ltd .... "....contraventions due to carelessness are not permissible and must be punished. Of course such contraventions are not in the same order as culpability as those involving an intention to deceive."'