Australian Competition and Consumer Commissioner v Telwater Pty Ltd [2009] FCA 263

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FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commissioner v Telwater Pty Ltd [2009] FCA 263

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v TELWATER PTY LTD ACN 010 795 507 and PAUL MATTHEW PHELAN

QUD 26 of 2009

SPENDER J

5 MARCH 2009

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 26 of 2009

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND:

TELWATER PTY LTD ACN 010 795 507

First Respondent

PAUL MATTHEW PHELAN

Second Respondent

JUDGE:	SPENDER J
DATE OF ORDER:	5 MARCH 2009
WHERE MADE:	BRISBANE

THE COURT DECLARES THAT:

1. By providing to dealers of Quintrex-branded products (Quintrex dealers):

(a) a price for each boat, trailer, and motor package supplied to Quintrex dealers (Quintrex package) that was described as a “brochure price” or “recommended retail price” or “RRP” (Brochure Price); and

(b) a document entitled “Quintrex and Dealer Expectations” that required Quintrex dealers to advertise Quintrex packages at Brochure Price,

from about June 2004, the first respondent (Telwater) contravened section 48 of the Trade Practices Act 1974 (Cth) by:

(c) engaging in the act described in section 96(3)(b) of the Trade Practices Act 1974 (Cth) by the operation of section 96(7)(a) of the Trade Practices Act 1974 (Cth) by attempting to induce Quintrex dealers not to advertise Quintrex packages at a price less than the Brochure Price;

(d) engaging in the act described in section 96(3)(c) of the Trade Practices Act 1974 (Cth) by the operation of section 96(7)(a) of the Trade Practices Act 1974 (Cth) by entering into an agreement with Quintrex dealers a term of which was that a Quintrex dealer could not advertise Quintrex packages at a price less than the Brochure Price; and

(e) engaging in the act described in section 96(3)(f) of the Trade Practices Act 1974 (Cth) by the operation section of 96(7) of the Trade Practices Act 1974 (Cth) by using, in relation to Quintrex packages, a statement of price that was likely to be understood by Quintrex dealers as the price below which Quintrex packages were not to be advertised.

2 By:

(a) providing to dealers of Stacer-branded products (Stacer dealers) a Brochure Price for each boat, trailer, and motor package supplied to Stacer dealers (Stacer package); and

(b) requiring Stacer dealers to advertise Stacer packages at Brochure Price,

from about June 2003 Telwater contravened section 48 of the Trade Practices Act 1974 (Cth) by:

(c) engaging in the act described in section 96(3)(b) of the Trade Practices Act 1974 (Cth) by the operation of section 96(7)(a) of the Trade Practices Act 1974 (Cth) by attempting to induce Stacer dealers not to advertise Stacer packages at a price less than the Brochure Price;

(d) engaging in the act described in section 96(3)(c) of the Trade Practices Act 1974 (Cth) by the operation of section 96(7)(a) of the Trade Practices Act 1974 (Cth) by entering into an agreement with Stacer dealers a term of which was that a Stacer dealer could not advertise Stacer packages at a price less than the Brochure Price; and

(e) engaging in the act described in section 96(3)(f) of the Trade Practices Act 1974 (Cth) by the operation of section 96(7) of the Trade Practices Act 1974 (Cth) by using, in relation to Stacer packages, a statement of price that was likely to be understood by Stacer dealers as the price below which Stacer packages were not to be advertised.

3 By making known to Quintrex dealers and Stacer dealers that Telwater would not subsidise the cost of a Quintrex dealer’s or Stacer dealer’s advertising if Quintrex packages or Stacer packages were advertised at a price below Brochure Price from about June 2005, Telwater contravened section 48 of the Trade Practices Act 1974 (Cth) by engaging in the act described in section 96(3)(b) of the Trade Practices Act 1974 (Cth) by the operation of section 96(7)(a) of the Trade Practices Act 1974 (Cth) by attempting to induce Quintrex dealers and Stacer dealers not to advertise Quintrex packages and Stacer packages at a price less than the Brochure Price.

4 By contacting Quintrex dealers and Stacer dealers when they advertised at a price below Brochure Price, including:

(a) Jet 1 Marine, a Stacer dealer, in about November 2006 and February 2007;

(b) Pacific Powerboats, a Stacer dealer, in about December 2006;

(d) Sundown Marine, a Quintrex dealer, in about December 2006;

(e) TR Marine, a Quintrex dealer, in about December 2006;

(f) Hayway Marine, a Stacer dealer, in about November 2007; and

(g) Cooloola Marine, a Stacer dealer, in about November 2007,

Telwater contravened of section 48 of the Trade Practices Act 1974 (Cth) by:

(h) engaging in the act described in section 96(3)(b) of the Trade Practices Act 1974 (Cth) by the operation of section 96(7)(a) of the Trade Practices Act 1974 (Cth) by attempting to induce Quintrex dealers and Stacer dealers not to advertise Quintrex packages and Stacer packages at a price less than the Brochure Price; and

(i) engaging in the act described in section 96(3)(f) of the Trade Practices Act 1974 (Cth) by the operation section 96(7) of the Trade Practices Act 1974 (Cth) by using, in relation to Quintrex packages and Stacer packages, a statement of price that was likely to be understood by Quintrex dealers and Stacer dealers as the price below which Quintrex packages and Stacer packages were not to be advertised

5 The second respondent (Mr Phelan) was knowingly concerned in, or party to, Telwater’s contraventions of section 48 of the Trade Practices Act 1974 (Cth) set out in paragraphs 1, 2, 3, and 4.

THE COURT ORDERS THAT:

6 Telwater pay to the Commonwealth pursuant to section 76 of the Trade Practices Act 1974 (Cth) a pecuniary penalty of $210,000 in respect of the contraventions of section 48 of the Trade Practices Act 1974 (Cth) set out in paragraphs 1, 2, 3, and 4.

7 Mr Phelan pay to the Commonwealth pursuant to section 76 of the Trade Practices Act 1974 (Cth) a pecuniary penalty of $28,000 in respect of his involvement in Telwater’s contraventions of section 48 of the Trade Practices Act 1974 (Cth) set out in paragraphs 1, 2, 3, and 4.

THE COURT ORDERS BY CONSENT THAT:

8 Pursuant to section 80(1) of the Trade Practices Act 1974 (Cth), for a period of 5 years from the date of this order Telwater be restrained by itself, its servants or agents, or otherwise howsoever from:

(a) making it known to a Quintrex dealer that it may not advertise Quintrex packages for a price less than a price specified by Telwater;

(b) making it known to a Stacer dealer that it may not advertise Stacer packages for a price less than a price specified by Telwater;

(c) refusing to subsidise the cost of a Quintrex dealer’s advertising because a Quintrex package is being advertised for a price less than a price specified by Telwater;

(d) refusing to subsidise the cost of a Stacer dealer’s advertising because a Stacer package is being advertised for a price less than a price specified by Telwater;

(e) inducing, or attempting to induce, a Quintrex dealer not to advertise Quintrex packages for a price less than a price specified by Telwater;

(f) inducing, or attempting to induce, a Stacer dealer not to advertise Stacer packages for a price less than a price specified by Telwater.

9 Pursuant to section 80(1) of the Trade Practices Act 1974 (Cth), for a period of 5 years from the date of this order Mr Phelan be restrained by himself, his servants or agents, or otherwise howsoever from:

(a) making it known to a Quintrex dealer that it may not advertise Quintrex packages for a price less than a price set by Telwater;

(b) making it known to a Stacer dealer that it may not advertise Stacer packages for a price less than a price set by Telwater;

(c) refusing to subsidise the cost of a Quintrex dealer’s advertising because a Quintrex package is being advertised for a price less than a price set by Telwater;

(d) refusing to subsidise the cost of a Stacer dealer’s advertising because a Stacer package is being advertised for a price less than a price set by Telwater;

(e) inducing, or attempting to induce, a Quintrex dealer not to advertise Quintrex packages for a price less than a price set by Telwater;

(f) inducing, or attempting to induce, a Stacer dealer not to advertise Stacer packages for a price less than a price set by Telwater.

10 Pursuant to section 86C of the Trade Practices Act 1974 (Cth), Telwater establish and implement at its own expense a trade practices compliance program for its employees and other persons involved in its business that is designed to ensure their awareness of their responsibilities and obligations under section 48 of the Trade Practices Act 1974 (Cth).

11 Pursuant to section 86C of the Trade Practices Act 1974 (Cth), Telwater and Mr Phelan write to each Quintrex dealer and Stacer dealer in the form of annexure A at Telwater’s expense.

12 Telwater and Mr Phelan pay the ACCC’s costs of the proceeding fixed in the sum of $40,000.

District Registrar

Date that entry is stamped:

If you, Telwater Pty Ltd and Paul Matthew Phelan, do not obey this order within the time specified, you will be liable to court proceedings to compel you to obey it and punishment for contempt.

ANNEXURE A

Letter to Quintrex dealers and Stacer dealers

[To be placed on Telwater (or Quintrex or Stacer) letterhead, as appropriate.]

[To Quintrex dealer or Stacer dealer]

[insert address]

Dear Sir/Madam (or personalise)

Resale price maintenance by Telwater

Following civil proceedings instituted by the Australian Competition and Consumer Commission (ACCC), the Federal Court of Australia has found that Telwater Pty Ltd engaged in resale price maintenance.

As an explanation, resale price maintenance is an attempt by a supplier (i.e. Telwater) to set a minimum price below which its retailers (i.e. dealerships) cannot sell, advertise, display, or offer goods for sale. It is prohibited by section 48 of the Trade Practices Act 1974.

The Court has declared that Telwater engaged in resale price maintenance (thus contravening the Trade Practices Act) by:

(a) requiring Quintrex and Stacer dealers to advertise boat, trailer, and motor packages at brochure price;

(b) refusing to subsidise the cost of Quintrex and Stacer’s dealers advertising from the marketing fund if boat, trailer, and motor packages were advertised below brochure price; and

One of the Court’s orders is that Telwater must write to each dealer (both Quintrex and Stacer) to notify them of the outcome of these proceedings and to inform them of the illegality of resale price maintenance.

Telwater has been ordered to pay a penalty of [amount] and to pay a contribution to the ACCC’s costs of [amount]. The Court has also granted injunctions restraining Telwater from engaging in resale price maintenance in the future.

As a [Quintrex/Stacer] dealer, you are free to set the price at which you advertise or sell our products you purchase from us. This freedom to is protected by the Trade Practices Act. Any “brochure price” or “recommended retail price” or “RRP” used or set by us (or any other supplier for that matter) is a suggestion only.

Further, Telwater cannot refuse to subsidise the cost of your advertising under the marketing fund because a [Quintrex/Stacer] package is being advertised for a price less than a price set by Telwater.

I have enclosed a copy of the ACCC publication entitled “Resale Price Maintenance” for your perusal. You can also obtain further information about the ACCC’s proceedings against Telwater and the Trade Practices Act generally from the ACCC website at www.accc.gov.au.

Yours sincerely

Paul Phelan

Managing Director

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 26 of 2009

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND:

TELWATER PTY LTD ACN 010 795 507

First Respondent

PAUL MATTHEW PHELAN

Second Respondent

JUDGE:	SPENDER J
DATE:	5 MARCH 2009
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 This is an application filed on 21 January 2009 by the Australian Competition and Consumer Commission (ACCC) for declarations under s 21 of the Federal Court of Australia Act 1976 (Cth), injunctions under s 80 of the Trade Practices Act 1974 (Cth) (the TP Act), pecuniary penalties under s 76 of the TP Act, and other orders under s 86C of the TP Act, in respect of contraventions of s 48 of the TP Act, the section that prescribes resale price maintenance. The Court has jurisdiction to hear the application under s 86 of the TP Act and s 39B(1A) of the Judiciary Act 1903 (Cth).

2 On 6 February 2009, at the request of the parties, I ordered that the application be listed for hearing as to appropriate relief today, and I ordered that at least three days prior to the hearing the applicant and respondents file joint submissions. Those joint submissions were filed on 3 March 2009. They address comprehensively both the legal issues and the factual matters which underpin the declarations and orders which the parties join in asking the Court to make.

3 The first respondent, Telwater Pty Ltd (Telwater), is a manufacturer and wholesaler of aluminium boats and accessories. Relevantly, it produces and distributes products under the names Quintrex and Stacer. Since about June 2003 Telwater made available to Stacer dealers a recommended retail price or brochure price “for all Stacer products” and since about June 2004 it made available to Quintrex dealers a brochure price for Quintrex products.

4 Telwater then engaged in activities that induced dealers of these products not to advertise Quintrex or Stacer products at a price lower than the brochure price. The second respondent, Mr Phelan, is and was at all material times, the managing director of Telwater.

5 The application by the ACCC alleges that Telwater engaged in, and Mr Phelan was knowingly involved in, the practice of resale price maintenance in relation to the advertising of boat, motor and trailer packages by dealers of the two Telwater products, Quintrex and Stacer.

6 The ACCC has filed a Statement of Claim pleading the contravening conduct. The respondents have filed a Defence admitting the allegations in the Statement of Claim. The joint submissions filed by the parties set out further facts supporting the relief which the parties agree in asking the Court to make.

The Contravening Conduct

7 The material facts giving rise to the contraventions of s 48 of the TP Act are summarised in the agreed joint submissions, and the contraventions pleaded in the ACCCs Statement of Claim are admitted. I set out that contravening conduct, taken from the agreed joint submissions of the parties:

6 Telwater is a manufacturer of aluminium boats and a wholesaler of aluminium boats and boating accessories (including motors and trailers). Telwater manufactures boats under the brands “Quintrex” (since 1988) and “Stacer” (since 1999). The brands are, to an extent, managed separately within Telwater.

7 Telwater’s management structure at all relevant times included:

(a) a managing director (at all relevant times, Mr Phelan);

(b) a national director of sales and marketing, who reported directly to the managing director;

(d) two Quintrex sales managers (one for New South Wales, Victoria, and Tasmania, and one for Queensland, Western Australia, South Australia, and the Northern Territory), each of whom reported to the national director of sales and marketing; and

(e) two Stacer sales managers (one for New South Wales, Victoria, and Tasmania, and one for Queensland, Western Australia, South Australia, and the Northern Territory), each of whom reported to the national director of sales and marketing.

8 Consistently with this, Telwater has, in essence, two separate dealer networks: one for Quintrex-branded products and one for Stacer-branded products. At all relevant times, Telwater had over 150 dealers (Quintrex dealers and Stacer dealers) around Australia to whom it supplied its products for sale in the retail market.

9 From time to time, Telwater determined what was known as a “brochure price” for boat, motor, and trailer packages (Brochure Price). The price was determined by Telwater’s managing director, Mr Phelan, Telwater’s national director of sales and marketing, and Telwater’s contracts and pricing manager. Telwater published the Brochure Prices it determined to Quintrex dealers and Stacer dealers. It is Telwater’s conduct in connection with that Brochure Price that has given rise to these proceedings.

10 The ACCC alleges, and Telwater admits, that Telwater engaged in three separate types of contravening conduct.

Dealer Expectation Conduct

11 First, Telwater engaged in conduct whereby it:

(a) induced or intended to induce Quintrex dealers and Stacer dealers not to advertise Quintrex products and Stacer products respectively for a price less than the Brochure Price unless the Quintrex product or Stacer product was an old or superseded model;

(b) offered to enter into an agreement with Quintrex dealers and Stacer dealers to supply them with Quintrex products and Stacer products respectively, one of the terms of which was that the Quintrex and Stacer dealers would not advertise the Quintrex products and Stacer products for a price less than the Brochure Price unless the Quintrex product or Stacer product was an old or superseded model;

(c) used in relation to the Quintrex and Stacer products a statement of price that was likely to be understood by each Quintrex and Stacer dealer as the price below which they shouldn’t advertise by making it known to Quintrex and Stacer dealers that they could not advertise Quintrex products and Stacer products for a price less than the Brochure Price except if the Quintrex product and Stacer product was an old or superseded model.

12 It is convenient to call this the Dealer Expectation Conduct.

13 In relation to the Dealer Expectation Conduct, Telwater made known to dealers that boat, motor, and trailer packages were to be advertised at Brochure Price (or above) by:

(a) Providing each dealer with a “dealer expectations” document and requesting that they comply with that document. This formed part of the agreement between Telwater and the dealers.

(b) Including in the dealer expectations document that the dealers were to maintain at all times that advertised price in any form of media is always at the current Brochure Price or above.

Marketing Fund Conduct

14 Secondly, Telwater administered a “marketing fund” for each dealer, which was 2% of the dealer’s wholesale purchases. Telwater used a dealer’s marketing fund to subsidise the cost of a dealer’s advertising; however, where the advertising included a price, the subsidy was only available if the price was the Brochure Price (or above).

15 Telwater made known to the Quintrex and Stacer dealers that they would not receive the subsidy from the marketing fund in relation to Quintrex and Stacer products respectively that were advertised below the Brochure Price. It is convenient to call this the Marketing Fund Conduct.

16 By this conduct Telwater:

(a) made known to the Quintrex and Stacer dealers that the marketing fund would not be used to subsidise the cost of advertising products below the Brochure Price; and

(b) induced or intended to induce Quintrex and Stacer dealers not to advertise Quintrex and Stacer products respectively for a price less than the Brochure Price.

Dealer Contact Conduct

17 Thirdly, Telwater monitored dealers’ advertising of, inter alia, a boat, motor, and trailer package and if it found or discovered that a dealer was advertising at below the Brochure Price it would contact the dealer to ask for an explanation as to why that was occurring. It is convenient to call this the Dealer Contact Conduct.

18 In this regard, following a review of its dealers’ advertising, Telwater:

(a) prepared internal reports of dealers’ advertising;

(b) identified in that internal report if a dealer was advertising at below the Brochure Price;

(c) had the relevant Telwater sales manager contact the dealer to ask for an explanation as to why the package was being advertised at below Brochure Price. Sales managers also reminded dealers of the term set out in paragraph 11(b) above;

(d) contacted offending dealers on at least five occasions which have been identified in the particulars of paragraph 30 of the statement of claim.

19 By engaging in the conduct referred to in paragraph 18, Telwater:

(a) induced or intended to induce the Quintrex dealers and Stacer dealers it contacted not to advertise Quintrex or Stacer products for a price less than the Brochure Price; and

(b) made known to the Quintrex dealers and Stacer dealers it contacted not to advertise Quintrex or Stacer products for a price less than the Brochure Price.

20 In related conduct, Telwater would cause its sales managers to contact a dealer if it became aware the dealer was advertising at less than the Brochure Price for a boat, motor and trailer package by some other means and:

(a) reminded the dealer that Telwater would not honour any marketing claims below the Brochure Price; and

(b) requested them to remove the advertisement or adjust the prices.

21 There are at least two occasions where the conduct referred to in paragraph 20 occurred, once by contacting Jet 1 Marine and on the other occasion by contacting Hayway Marine. By engaging in the conduct referred to in paragraph 20, Telwater:

(a) induced or intended to induce the Stacer dealers it contacted not to advertise Stacer products for a price less than the Brochure Price; and

(b) made known to the Stacer dealers it contacted not to advertise Stacer products for a price less than the Brochure Price.

Generally

22 Telwater engaged in each of the Dealer Expectation Conduct, Marketing Fund Conduct, and Dealer Contact Conduct in relation to Quintrex dealers and Stacer dealers.

23 Mr Phelan, Telwater’s managing director, was knowingly concerned in this conduct. It took place with his knowledge, authorisation, and approval.

24 There is no material before the Court:

(a) that Telwater attempted to directly restrain the price at which Quintrex or Stacer dealers could sell boat, motor, and trailer packages: the only restrictions were on advertising; or

(b) that Telwater terminated, or threatened to terminate, its relationship with a dealer because a dealer advertised boat, motor, and trailer packages below the brochure price.

25 Telwater only engaged in the contravening conduct in relation to boat, motor, and trailer packages. There is no material before the Court suggesting that Telwater engaged in the conduct more broadly (eg, in relation to the advertising or sale of boats otherwise than in boat, motor, and trailer packages).

26 Telwater voluntarily ceased the Dealer Expectation Conduct, Marketing Fund Contact, and Dealer Contact Conduct once it became aware of the ACCC’s investigation in December 2007.

The Relevant Legislation

8 Resale price maintenance is dealt with in s 48 of the TP Act which provides:

A corporation … shall not engage in the practice of resale price maintenance.

9 Section 4(1) provides:

In this Act, unless the contrary intention appears:

…

practice of resale price maintenance means the practice of resale price maintenance referred to in Part VIII.

10 Acts constituting engaging in the practice of resale price maintenance are identified in s 96 of the TP Act, which is in Part VIII, and which relevantly provides:

96 Acts constituting engaging in resale price maintenance

…

(1) [A] corporation (in this section called the supplier) engages in the practice of resale price maintenance if that corporation does an act referred to in any of the paragraphs of subsection (3).

…

(3) The acts … are the following:

…

(b) the supplier inducing, or attempting to induce, a second person not to sell, at a price less than a price specified by the supplier, goods supplied to the second person by the supplier …;

(c) the supplier entering into an agreement, or offering to enter into an agreement, for the supply of goods to a second person, being an agreement one of the terms of which is, or would be, that the second person will not sell the goods at a price less than a price specified, or that would be specified, by the supplier;

…

(f) the supplier using, in relation to any goods supplied, or that may be supplied, by the supplier to a second person, a statement of a price that is likely to be understood by that person as the price below which the goods are not to be sold.

11 Section 96(7) provides:

A reference in any of paragraphs (3)(a) to (e), inclusive, including a reference in negative form, to the selling of goods at a price less than a price specified by the supplier shall be construed as including references to:

(a) the advertising of goods for sale at a price less than a price specified by the supplier as the price below which the goods are not to be advertised for sale;

(b) the displaying of goods for sale at a price less than a price specified by the supplier as the price below which the goods are not to be displayed for sale; and

(c) the offering of goods for sale at a price less than a price specified by the supplier as the price below which the goods are not to be offered for sale;

and a reference in paragraph (3)(d), (e) or (f) to a price below which the goods are not to be sold shall be construed as including a reference to the price below which the goods are not to be advertised for sale, to the price below which the goods are not to be displayed for sale and to the price below which the goods are not to be offered for sale.

12 Section 96(7) extends the operation of s 96(3) so that it applies to advertising as well as to sales.

13 The evident purpose of the provision is that maintenance of advertised prices indirectly amounts to maintenance of sale prices: see the observations of Smithers J (with whom Spicer CJ) agreed in Commissioner of Trade Practices v Caltex Oil (Australia) Pty Ltd (1974) 23 FLR 457 at 473.

The agreed submissions of the parties states:

34 Whilst there is no evidence that Telwater sought to directly maintain the price at which boat, motor and trailer packages were sold by Quintrex dealers or Stacer dealers, the effect of section 96(7) is that Telwater’s restrictions as to advertising at a price less than the brochure price also amount[s] to resale price maintenance.

14 In The Heating Centre Pty Ltd v Trade Practices Commission (1986) 9 FCR 153 at 164, Pincus J said:

It is true that the word [“inducement”] ordinarily refers to some proffered advantage or disadvantage, promised or threatened, to follow from following or failing to follow a stipulated course of action. There is no reason, however, to read into par (b) a necessity to find that anything is offered in exchange, so to speak, for not discounting; mere persuasion, with no promise or threat, may well be an attempt to induce.

15 The parties agree that each of the types of conduct engaged in by Telwater amounted to inducement within the meaning of s 96(3)(b):

36 In the context of resale price maintenance, this statement has been specifically followed by Goldberg J in Australian Competition and Consumer Commission v SIP Australia Pty Ltd [(2002) ATPR 41-877 at 45,015 [112]], Lee J in Kadkhudayan v W D & H O Wills (Australia) Pty Ltd [(2001) ATPR 41-822 at 43,078 [33]] and Kiefel J in Australian Competition and Consumer Commission v Mayo International Pty Ltd [(1998) 85 FCR 327 at 329]. In the last of those cases, Kiefel J (citing Pincus J in Heating Centre) put the matter this way:

“Inducing” to my mind conveys both the means employed and the result. It refers to actions which are effective, although they may not have comprised actual coercion or pressure, or the offer of an advantage …

37 Kiefel J also held that “mild persuasion … will suffice to qualify conduct as an attempt to induce the maintenance of price” [(1998) ATPR 41-653 at 41,277]. Kiefel J “acknowledge[d] there may be difficulties in concluding that a ‘mere request’ to maintain prices could amount to an attempt to induce … A request however may be framed in such a way as to be persuasive and to be taken to have been so intended” [(1998) ATPR 41-653 at 41,277].

38 The parties submit that each of the types of conduct engaged in by Telwater amounted to inducement within the meaning of section 96(3)(b).

39 In relation to the Dealer Expectations Conduct, the “proffered advantage” (to use Pincus J’s expression in Heating Centre) was being a Quintrex dealer or Stacer dealer.

40 In relation to the Marketing Fund Conduct, it was the marketing subsidy that Telwater would otherwise have made available to the dealer. In Trade Practices Commission v Simpson Pope Ltd [(1980) 30 ALR 544 at 549, 555 per Franki J], the Federal Court held that the removal of advertising allowances for retailers that maintain the supplier’s desired price amounted to an inducement within the meaning of section 96(3)(b). The parties submit that the facts here are relevantly indistinguishable from the facts considered in Simpson Pope.

41 In relation to the Dealer Contact Conduct, the conduct has significant similarity to the conduct considered by Kiefel J in Mayo International [Australian Competition and Consumer Commission v Mayo International Pty Ltd (1988) ATPR 41-653 at 41,277]. The sales managers’ contact with dealers could be understood, and was understood, by dealers as being an attempt to persuade the dealers not to advertise boat, motor, and trailer packages below the brochure price.

Attempts to induce within the meaning of section 96(3)(b)

42 In Trade Practices Commission v Mobil Oil Australia Ltd [(1984) 3 FCR 168 at 183], Toohey J held that though inducement in section 96(3)(b) is “absolute in the sense that proof of the conduct proscribed is sufficient”, “in the case of attempt, there must be an intention to bring about the prohibited result”. Accordingly, insofar as the ACCC has specifically pleaded Telwater’s intention to induce where an attempt has been alleged that intention has been admitted by the respondents in relation to the Dealer Expectation Conduct, the Marketing Fund Conduct, and the Dealer Contact Conduct.

“Agreement” in section 96(3)(c)

43 Section 96(3)(c) requires there to be an “agreement”, as does section 96(3)(a). In relation to section 96(3)(a), Goldberg J in Australian Competition and Consumer Commission v Dermalogica Pty Ltd [(2005) 215 ALR 482 at 492 [50]], held:

I do not consider that the notion of “agreement” in the context of section 96(3)(a) should be confined to something resembling a negotiated contract or the explicit provision of an assurance. It can extend to acquiescence or submission by the second person to a unilateral demand by the supplier.

There is no need for evidence that a formal agreement is sought. All that must be shown is that the supplier made it known that agreement by the second person not to discount is required to maintain supply; it need not be shown that the supplier was even seeking acknowledgment that it had been made known, let alone any indication of the second person’s intended course of conduct in response to the making-known. The provision requires only communication from the supplier to the second person, and it does not require anything in the nature of a response, nor does it require that the communication from the supplier sought a response. The second person may acquiesce or submit and may do so in complete silence.

44 The parties [agree] that the same observations apply in relation to section 96(3)(c).

45 No formal agreement was entered into between Telwater and Quintrex dealers and Stacer dealers, however it is alleged and admitted that the relatively informal arrangements between Telwater and Quintrex dealers and Stacer dealers … constitute “agreements” within the meaning of section 96(3)(c), one of the terms of which is that each dealer must advertise boat, motor, and trailer packages at or above the brochure price.

Recommended prices

46 Section 97 of the TP Act provides:

For the purposes of paragraph 96(3)(b), the supplier is not to be taken as inducing, or attempting to induce, a second person as mentioned in that paragraph in relation to any goods:

(a) by reason only of a statement of a price being applied to the goods as mentioned in paragraph 99(1)(a) or being applied to a covering, label, reel or thing as mentioned in paragraph 99(1)(b), provided that the statement is preceded by the words “recommended price”; or

(b) by reason only of his or her having given notification in writing to the second person (not being a notification by way of a statement being applied as mentioned in paragraph (a)) of the price that he or she recommends as appropriate for the sale of those goods, provided that there is included in the notification, and in each writing that refers, whether expressly or by implication, to the notification, a statement to the following effect:

“The price set out or referred to herein is a recommended price only and there is no obligation to comply with the recommendation.”

47 In essence, section 97 provides that a mere recommendation of a retail price for sale or advertisement will not amount to resale price maintenance [See Australian Competition and Consumer Commission v Mayo International Pty Ltd (1998) 85 FCR 327 at 328-329 per Kiefel J]. However, as Lockhart J held in Trade Practices Commission v Bata Shoe Company of Australia Pty Ltd (No 2)[(1979) 44 FLR 149 at 160]: “the fact that the specification of a price is couched in terms of recommendation does not prevent it from being a price specified by the supplier.”

48 Here, though the brochure price was described as a “recommended retail price” or “RRP”, the further circumstances pleaded in the statement of claim have the effect that resale price maintenance nonetheless occurred.

16 The parties have indicated in their joint submissions the relief they believe it is appropriate for the Court to grant:

Relief sought

49 The ACCC’s application seeks:

(a) declarations that, in respect of each of the types of resale price maintenance noted above, Telwater engaged in, and Mr Phelan was knowingly concerned in, the practice of resale price maintenance in contravention of section 48 of the TP Act;

(b) injunctions restraining Telwater and Mr Phelan from engaging in those types of resale price maintenance;

(d) an order under section 86C of the TP Act requiring Telwater to establish a trade practices compliance program;

(e) an order under section 86C of the TP Act requiring Telwater to write to its dealers about these proceedings; and

(f) an order for costs.

50 The parties acknowledge that all of the relief the ACCC seeks is discretionary and it is for the Court to make its own assessment of, and to determine, the appropriate relief that should be ordered for a contravention of Part IV of the TP Act. The parties make these submissions jointly in order to assist the Court to make its own determination of the appropriate relief that ought to be ordered.

Declarations

51 Section 21 of the Federal Court of Australia Act 1976 (Cth) gives the Court power, in relation to a matter in which it has original jurisdiction, to make binding declarations of right. …

52 The Court is entitled to treat Telwater’s consent as involving an admission of all facts necessary or appropriate to the granting of the relief sought.

53 However, despite the parties’ consent, the Court must be careful to ensure that the proposed consent orders (including the declarations) are within power and otherwise appropriate. In Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [(1999) 161 ALR 79 at 80[1], 87[20]-[21]], French J (as his Honour then was) explained:

As a general principle fair and appropriate settlements are encouraged to reduce the burden of litigation on both public and private resources. Courts are frequently asked to play their part by accepting formal undertakings or making orders by consent which prohibit parties from certain conduct or require them to do certain things. Sometimes they are asked to impose agreed pecuniary penalties. In carrying out those functions, courts are conscious of the public interest in the settlement of cases. They must also be conscious, however, that the laws they apply are public laws. It is in the public interest that, in considering agreements between parties requiring orders of a court, the court does not act as a mere rubber stamp. What is proposed must always be scrutinised to determine whether undertakings or consent orders are within power and are appropriate. …

…

A general principle of judicial restraint in the scrutiny of proposed settlements was enunciated early in the history of the Trade Practices Act. It is not the function of the court to impede settlements between parties legally represented and able to understand and evaluate the desirability of agreeing to a settlement nor to refuse to give effect to terms of settlement by refusing to make orders or accept undertakings where they are within the court's jurisdiction and are otherwise unobjectionable … In NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission[(1996) 71 FCR 285 at 291], Burchett and Kiefel JJ observed in their joint judgment:

There is an important public policy involved. When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure [for a pecuniary penalty] is one within the permissible range in all the circumstances. The court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, or except in a clear case.

Similarly, in relation to proposed consent orders and undertakings the court will not simply substitute its own view of the orders or undertakings which it would have made if those proffered fall within the range of an appropriate disposition of the case.

54 The declarations sought contain sufficient information as to how and why the conduct complained of is a contravention of the TP Act. They “indicat[e] the gist” of the contravening conduct. The parties [agree] they should be made.

Injunctions

55 The Court is empowered by section 80 of the TP Act to grant injunctive relief. Section 80 relevantly provides as follows:

(1) … [W]here, on the application of the Commission or any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:

(a) a contravention of any of the following provisions:

(i) a provision of Part IV…

(b) attempting to contravene such a provision;

…

the Court may grant an injunction in such terms as the Court determines to be appropriate.

(1AA) Where an application for an injunction under subsection (1) has been made … the Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind mentioned in subsection (1).

…

(4) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:

(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind;

(b) whether or not the person has previously engaged in conduct of that kind; and

(c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.

56 Section 80(1AA) applies in this case because the injunctions are sought with the consent of both parties to the proceeding.

57 The parties [agree]:

(a) the Court has power under section 80 to make the orders sought;

(b) the injunctive relief is not too vague or imprecise, nor does it require continuing supervision by the Court;

(c) there is no multiplicity of overlapping injunctions that may give rise to confusion about the scope of the obligations being imposed; and

(d) the injunctions are appropriate to deter a repetition of the conduct.

58 The parties therefore [agree] that the injunctions should be made.

…

Pecuniary penalties

60 A contravention of a provision in Part IV of the TP Act, such as section 48, may lead to an order by the Court that the contravenor pay to the Commonwealth a pecuniary penalty. Section 76 relevantly provides as follows:

(1) If the Court is satisfied that a person:

(a) has contravened any of the following provisions:

(i) a provision of Part IV …; [or]

…

(b) has attempted to contravene such a provision;

…

the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each act or omission by the person to which this section applies, as the Court determines to be appropriate having regard to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Court in proceedings under this Part or Part XIB to have engaged in any similar conduct.

(1A) The pecuniary penalty payable under subsection (1) by a body corporate is not to exceed … for each [relevant] act or omission …—$10,000,000.

61 The principles regarding the imposition of pecuniary penalties, including penalties jointly proposed by the parties, were recently considered by Lindgren J in Australian Competition and Consumer Commission v Qantas Airways Ltd [[2008] FCA 1976 at [16]-[27]] and Finkelstein J in Australian Competition and Consumer Commission v Oobi Baby Pty Ltd [[2008] FCA 1488 at [9]]. Finkelstein J summarises the position as follows:

So far as the penalties were concerned many cases have examined the Court’s task in considering a joint position on penalties. The applicable principles are authoritatively dealt with in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [(1996) 71 FCR 285] and Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd.[(2004) ATPR 41-993]. I do not need to recite them here. The upshot of the authorities is that the Court should not depart lightly from a joint position put forward by the parties. The inquiry to be undertaken is not whether the Court would have arrived at the same figure as the parties, but whether the proposal fixes an appropriate amount “within the permissible range” of penalties that might properly be imposed …

62 In addition to the declaratory and injunctive relief, the parties jointly submit that the Court should order that:

(a) Telwater pay a pecuniary penalty to the Commonwealth in the sum of $210,000; and

(b) Mr Phelan pay a pecuniary penalty to the Commonwealth in the sum of $28,000.

17 The joint submissions of the parties identify the relevant factors in the present case.

18 The parties have set out the extent of the three kinds of contravening conduct that is summarised in [11] to [26] of their joint submissions:

Nature and extent of the contravening conduct

…

65 The Dealer Expectation Conduct:

(a) occurred from about June 2004 to about December 2007 (ie, approximately 3½ years) in relation to Quintrex dealers;

(b) occurred from about June 2003 to about December 2007 (ie, approximately 4½ years) in relation to Stacer dealers; and

66 The Marketing Fund Conduct:

(a) occurred from about June 2005 to about December 2007 (ie, approximately 2½ years) in relation to both Quintrex dealers and Stacer dealers; and

(b) affected all Quintrex dealers and Stacer dealers.

67 The Dealer Contact Conduct:

(a) occurred from November 2006 (at the latest) to about November 2007 (ie, approximately 1 year);

(b) affected only some Quintrex dealers and Stacer dealers.

68 That is, some form of contravening conduct affected all (over 150) Quintrex dealers and Stacer dealers Australia-wide, and the contravening conduct (in some form) took place for approximately 4½ years.

69 In relation to Telwater’s conduct:

(a) each of the kinds of contravening conduct only related to restrictions on the price at which Quintrex dealers and Stacer dealers could advertise boat, motor, and trailer packages (as opposed to the price at which Quintrex dealers and Stacer dealers could sell those packages);

(b) there is no evidence of any threat by Telwater to withhold supply to any Quintrex dealer or Stacer dealer; and

(c) there is no evidence of any threat by Telwater to terminate a Quintrex dealer or Stacer dealer because the dealer advertised below the brochure price.

70 That said, however, the parties submit that a contravention of section 48 is a serious matter. This is reflected, among other things, in both the per se nature of the prohibition and the quantum of the maximum civil pecuniary penalty. Weinberg J observed in Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [(2002) ATPR 41-880 at 45,063 [29]:

Contraventions of section 48 are serious violations of the conditions laid down by Parliament for the conduct of corporate trade and commerce. The prohibition upon resale price maintenance is intended to create conditions under which the public will benefit from traders competing with each other in respect of prices, unfettered by price constraints imposed by suppliers of goods upon retailers …

71 More recently, in Australian Competition and Consumer Commission v Humax Pty Ltd [(2005) ATPR 42-072 at 43,138 [5]], Merkel J held:

Engaging in resale price maintenance is a serious offence. That is particularly so given that it must now be taken to be known generally that resale price maintenance, as defined in section 96 of the [TP] Act, is unacceptable and illegal conduct.

72 Resale price maintenance was first prohibited in the Australian Industries Preservation Act 1906 (Cth). The restrictions are not disclosed to consumers, and protect retailers from competition (at least for products of the same brand). In Australian Competition and Consumer Commission v High Adventure Pty Ltd [(2006) ATPR 42-091 at 44,563 [7] per Heerey, Finkelstein, and Allsop JJ] a Full Court of the Federal Court held:

Section 48 was … enacted on the premise that competition is important in the distribution of goods and that vertical price fixing, or resale price maintenance (supplier regulation of the price at which goods are resold), eliminates that competition. Several reasons have been put forward to explain why resale price maintenance is undesirable. One is that it permits the supplier to take advantage of retailers by denying them the freedom to set a price most advantageous to themselves. Another is that resale price maintenance is often a manifestation of price fixing among retailers themselves. A third reason is that a powerful supplier may insist that minimum prices be imposed on its retail goods. Yet another view is that resale price maintenance inevitably eliminates dealer competition with the undesirable consequence that consumers are limited in the range of choices they have with respect to price.

73 The contraventions the subject of this proceeding are serious, and deterrence, which is the “principal object of imposing a penalty under section 76”[Australian Competition and Consumer Commission v Qantas Airways Ltd [2008] FCA 1976 at [20] per Lindgren J], requires a significant penalty to be imposed.

19 This Court has to deal with the present application according to law. The above observations which I have quoted recognise that.

20 I have to say, however, that there is a strong body of economic thought, particularly from the economists of the Chicago School in the United States, who have the view that resale price maintenance is not anti-competitive, and that resale price maintenance should not constitute a per se violation of anti-trust law. While that view has, in fact, been incorporated into the competition law of the United States, the present application has to be dealt with on the basis of the statutory provisions which Parliament has imposed in respect of resale price maintenance in Australia. It is on that basis that I proceed in this matter.

21 The joint submissions continue:

The amount of loss or damage caused

74 There is no evidence quantifying the loss or damage caused by the contravening conduct. Indeed, such a quantification may be impossible (at least in the circumstances of the present case).

75 Given that resale price maintenance is prohibited per se, ie regardless of its effect on competition, the parties submit that the absence of evidence about the effect of Telwater’s conduct is neither a circumstance of mitigation nor a circumstance of aggravation.

…

Telwater’s size

77 Telwater is, and was at the time of the contravening conduct, a significant company.

78 Telwater’s sales activity is shown in the following table, which is based on Telwater’s records:

Year ending Dealers Sales Revenue Profit

30 June 2004 163 12,101 $ 77,924,060 $7,605,695

30 June 2005 157 13,718 $ 94,800,181 $9,416,273

30 June 2006 161 13,046 $102,685,412 $8,657,402

30 June 2007 167 12,154 $113,902,039 $8,533,550

30 June 2008 159 10,544 $ 98,294,037 $6,002,640

79 As at 30 June 2008, Telwater had net assets of $7,813,159, comprising $450,000 in share capital and $7,363,159 in retained profits.

80 Though Telwater’s staffing levels fluctuated in the period during which it engaged in the contravening conduct (from June 2003 to December 2007), in September 2008 Telwater had 314 staff, comprising:

(a) the 7 people identified in paragraph 7 above;

(b) 56 other office employees; and

81 Telwater’s staffing levels were broadly similar in the period during which it engaged in the contravening conduct.

82 Telwater and Mr Phelan each have the capacity to pay the proposed pecuniary penalty in relation to them.

22 The parties in their joint submissions under the heading, “Deliberateness of the contravention and the period over which it extended”, state:

86 Here, each of the kinds of contravening conduct was deliberate and systematic. However, the conduct was in ignorance of the law. Though the conduct was not inadvertent, Telwater and Mr Phelan engaged in the conduct in the mistaken belief that the conduct was lawful.

23 The joint submissions continue:

Whether the contravention arose out of the conduct of senior management

87 Here, the conduct arose out of the highest levels of management. Telwater’s managing director knew of, and approved, the contravening conduct.

24 The joint submissions acknowledge, in respect of whether Telwater had a corporate culture conducive to compliance:

88 Prior to December 2007 (which is when Telwater first became aware of the ACCC’s investigation), Telwater had no culture of compliance with the TP Act in that:

(a) it neither required, nor had any program for, training of its managers or employees (including Mr Phelan) in relation to the provisions of the TP Act; and

(b) it had no ongoing compliance program in relation to the provisions of the TP Act;

89 Telwater’s managers and employees (including Mr Phelan) were ignorant of the provisions of the TP Act.

25 The joint submissions continue:

Whether Telwater has cooperated with the ACCC

90 There is a well-recognised public interest in the settlement of cases under the TP Act. Where contraventions are acknowledged, lengthy and complex litigation is frequently avoided.

91 Here, Telwater has cooperated with the ACCC from the earliest possible opportunity. Telwater’s cooperation has significantly reduced the amount of ACCC resources involved in the investigation and prosecution of this contravention and reduced legal costs and court time.

Similar conduct in the past

92 Neither Telwater nor Mr Phelan has been found to have engaged in any similar conduct in the past.

26 Concerning the proposition that the Court should impose the penalties that are agreed between the parties, provided it is of the view that the proposed penalties are appropriate, joint submission said:

Conclusion: the proposed penalties are appropriate

96 Determining the quantum of a penalty is not an exact science. Within a permissible range, the Courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another.

97 The penalties proposed by the parties ($210,000 for Telwater, $28,000 for Mr Phelan) are broadly in accordance with penalties imposed in other cases for resale price maintenance. This is in keeping with the parity principle that, all other things being equal, similar conduct should be deserving of similar penalties. The table in annexure A summarises the penalties in other resale price maintenance proceedings (though the parties acknowledge that each case depends on its own facts and penalties should not be determined by comparing one case with another ).

27 I will, as Table A to these reasons, incorporate the useful summary that appears as annexure A to the joint submissions.

28 The parties recognise also that it is appropriate for the court to consider costs in determining the appropriate penalty: Australian Competition Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513 at 532 [78] by the Full Court (Moore, Dowsett and Greenwood JJ).

29 The parties further agree to the establishment of a compliance program and communication with dealers:

Compliance program

99 Section 86C(2)(b) of the TP Act provides that the Court may make a “probation order for a period of no longer than 3 years” in relation to a person who has engaged in conduct that contravenes Part IV.

100 The term “probation order” is defined in section 86C(4) to mean:

an order that is made by the Court for the purpose of ensuring that the person does not engage in the contravening conduct, similar conduct or related conduct during the period of the order, and includes:

(a) an order directing the person to establish a compliance program for employees or other persons involved in the person’s business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the contravening conduct, similar conduct or related conduct; and

(b) an order directing the person to establish an education and training program for employees or other persons involved in the person’s business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the contravening conduct, similar conduct or related conduct; and

(c) an order directing the person to revise the internal operations of the person’s business which lead to the person engaging in the contravening conduct.

101 It is well-established that section 86C of the TP Act empowers the Court to make an order requiring a corporate respondent to establish a compliance program, though there are some limitations on the power. The primary limitation on the order is that the program must be connected with the contravening conduct.

102 The order sought by the parties is limited to promoting compliance with section 48 of the TP Act, which is the section giving rise to the contravention by Telwater. The parties [agree] that the order should be made.

…

Communications with dealers

104 Though the parties do not seek any corrective advertising to the public (under section 86C(2)(d) of the TP Act) or adverse publicity order (under section 86D of the TP Act), the parties seek an order requiring Telwater to write to Quintrex dealers and Stacer dealers informing them about the conduct and that Telwater can only recommend prices at which boat, motor, and trailer packages may be sold or advertised.

105 The parties [agree] that such an order is appropriate because:

(a) the contravening conduct was directed at Quintrex dealers and Stacer dealers, not the public at large;

(b) such communications are consistent with the purposes of corrective advertising;

(d) the cost to Telwater in communicating with the dealers will be modest.

106 Orders under section 86C requiring publication of information to retailers have been made before. The parties [agree] the Court should make the orders in this proceeding.

30 The parties make the following submissions as to costs:

Costs

107 The Court is empowered to make an order for a gross sum order for costs under Order 62, rule 4(2)(c) of the Federal Court Rules. Similar orders have been made in other proceedings commenced by the ACCC and resolved by consent. The parties [agree] it is appropriate for an order fixing the ACCC’s costs at $40,000 to be made in this proceeding.

31 As is apparent, the joint submissions comprehensively address the issues which the Court has to consider in the making of orders by way of relief on the ACCCs application.

32 I am satisfied, for the reasons which I have set out above, that it is appropriate to make the orders which the parties ask the court to make.

33 I therefore make the orders contained in the draft order handed to the Court by the parties.

I certify that the preceding thirty-three (33) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated: 24 March 2009

Counsel for the Applicant:	Ms S Brown

Solicitor for the Applicant:	Corrs Chambers Westgarth

Counsel for the Respondents:	Mr T Bradley

Solicitor for the Respondents:	McCullough Robertson

Date of Hearing:	5 March 2009

Date of Judgment:	5 March 2009

Table A

Summary of penalties imposed in other resale price maintenance cases

	Total penalty imposed
Case	Company	Individual
ACCC v Hugo Boss (Australia) Pty Ltd (1996) ATPR ¶41‑536	$ 515,000	$ 75,000
ACCC v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36; (1997) ATPR ¶41‑562[1]	$ 500,000
ACCC v Mayo International Pty Ltd (1998) ATPR ¶41‑653,[2] (1998) ATPR ¶41‑654, (1998) ATPR ¶41‑655	$ 46,000	$ 20,000 $ 2,000
ACCC v Sundaze Australia Pty Ltd (2000) ATPR ¶41‑736; [1999] FCA 1642	$ 500,000
ACCC v Colgate-Palmolive Pty Ltd (2002) ATPR ¶41‑880; [2002] FCA 619	$ 500,000
ACCC v Chaste Corporation Pty Ltd (in liq) [2004] FCA 398		$ 25,000
ACCC v Dermalogica Pty Ltd (2005) 215 ALR 482; (2005) ATPR ¶42‑046; [2005] FCA 152	$ 250,000
ACCC v RM Hall Pty Ltd, proceeding SAD182/2004, order made 29 March 2005	$ 65,000	$ 20,000 $ 10,000
ACCC v Humax Pty Ltd (2005) ATPR ¶42‑072; [2005] FCA 706	$ 150,000
ACCC v High Adventure Pty Ltd (2005) ATPR ¶42‑073; [2005] FCA 762		$ 2,000
ACCC v High Adventure Pty Ltd (2006) ATPR ¶42‑091; [2005] FCAFC 247	$ 20,000
ACCC v Chaste Corporation Pty Ltd (in liq) [2005] FCA 1212	$ 600,000	$ 150,000 $ 150,000 $ 100,000 $ 30,000
ACCC v Westminster Retail Pty Ltd (2005) ATPR ¶42‑084; [2005] FCA 1299	$ 100,000	$ 18,000 $ 18,000
ACCC v Cambur Industries Pty Ltd (2006) ATPR ¶42‑127; [2006] FCA 1027	$ 280,000
ACCC v Dataline. Net. Au Pty Ltd (in liq) (2006) 236 ALR 665; (2007) ATPR ¶42‑138; [2006] FCA 1427	$ 25,000[3] $ 25,000	$ 5,000
ACCC v Digital Products Group Pty Ltd (2007) ATPR ¶42‑144; [2006] FCA 1732	$ 238,000	$ 42,000 $ 17,500
ACCC v Jurlique International Pty Ltd (2007) ATPR ¶42‑146; [2007] FCA 79	$ 1,400,000 $ 1,000,000 $ 700,000 $ 100,000	$ 200,000
ACCC v Tooltechnic Systems (Aust) Pty Ltd (2007) ATPR ¶42‑154; [2007] FCA 432	$ 125,000
ACCC v TEAC Australia Pty Ltd (2007) ATPR ¶42‑201; [2007] FCA 1859	$ 175,000	$ 15,000
ACCC v Netti Atom Pty Ltd (2007) ATPR ¶42‑204; [2007] FCA 1945	$ 110,000	$ 11,250
ACCC v Navman Australia Pty Ltd (2007) ATPR ¶42‑208; [2007] FCA 2061	$ 1,250,000	$ 80,000 $ 30,000
ACCC v Hobie Cat Australasia Pty Ltd (2008) ATPR ¶42‑225; [2008] FCA 402	$ 168,000
ACCC v Oobi Baby Pty Ltd [2008] FCA 1488	$ 40,000
ACCC v Skins Compression Garments Pty Ltd, proceeding SAD136/2007, order made 2 December 2008	$ 120,000	$ 14,000
*Proposed penalties in this proceeding*	$ 210,000	$ 28,000

[1] The report of this case at (1997) 75 FCR 238 is abridged and not useful for the purpose of considering the appropriate penalty.

[2] The report of this judgment at (1998) 85 FCR 327 is significantly abridged and not useful for the purpose of considering the appropriate penalty.

[3] The Court did not order any penalties because the relevant companies were in liquidation; however these were the penalties that would have been ordered had the companies not been in liquidation.

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