Australian Competition & Consumer Commission v Hymix Industries Pty Ltd & Anor [1995] FCA 1063

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 774 of 1995 ) GENERAL DIVISION ) BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant AND: HYMIX INDUSTRIES PTY LIMITED First Respondent PHILLIP JOHN BARRETT Second Respondent DATE: 4 DECEMBER 1995 PLACE: SYDNEY REASONS FOR JUDGMENT LOCKHART J. This is a proceeding instituted in the original jurisdiction of the Court by the Australian Competition and Consumer Commission, formerly the Trade Practices Commission, against one corporate respondent and one natural person, for recovery of penalties pursuant to s. 76 of the Trade Practices Act 1974 ('the Act'). The alleged contraventions of the Act concern ss. 45(2)(a) and 45(2)(b) of the Act. As I mentioned in the previous matter, number 773 of 1995, the parties have reached agreement, subject to the Court's concurrence, on what should be done in the matter. It is agreed that there have been contraventions; and it is agreed what the appropriate penalties should be.

I have read the relevant material, including the joint submissions of the parties, and I need not repeat what they say. I therefore will not state the relevant facts nor the relevant principles. The relevant principles have been referred to in earlier cases, which I summarised in the reported case of Trade Practices Commission v Hymix Industries Pty Limited (1995) ATPR 41-369. Since then, there have been other cases which have followed the same general approach; I need not refer to them. The breaches are serious, but I think the agreement that has been reached reflects broadly the view the Court itself would have taken in the matter. I had thought at first, frankly, that the agreed penalties were on the lower side of what the Court might otherwise have imposed but, on reading the material fully, along with the joint submissions, I think the figures that have been agreed upon are pretty right in all the circumstances. Accordingly, I propose to make orders in accordance with the short minutes which have been handed up by the parties. The Court makes orders in accordance with paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 of the short minutes of order, initialled by me and placed with the papers. I certify that this and the preceding one (1) pages is a true copy of the reasons for judgment herein of the Honourable Justice Lockhart. Associate Dated: 4 December 1995 Counsel for the Applicant : Mr R A Finkelstein Mr G H Brandis Solicitors for the Applicant: Australian Government Solicitor Solicitors for the Respondents: Allen Allen & Hemsley Date of Hearing : 4 December 1995 Date of Judgment : 4 December 1995