J McPhee & Son (Aust) Pty Ltd v ACCC [2000] FCA 365

FEDERAL COURT OF AUSTRALIA

J McPhee & Son (Aust) Pty Ltd v ACCC [2000] FCA 365 TRADE PRACTICES – appeal – attempts to make an arrangement or reach an understanding regarding quotations for freight cartage – one attempt not successful, one attempt successful – whether case found by primary judge differed from that advanced by applicant – whether primary judge misunderstood respondents' case – whether primary judge was biased – assessment of witnesses by primary judge – corporate intention. TRADE PRACTICES – appeal – penalty – object of penalty – deterrence – deliberateness of conduct – punishment. TRADE PRACTICES – appeal – penalty – considerations in imposing penalty – attitude of contraveners to compliance with Trade Practices Act 1974 (Cth) – contraventions occurred after parent company was penalised for earlier contraventions – whether knowledge was held by contraveners of earlier contraventions – effect of knowledge of earlier contraventions in imposing penalty. TRADE PRACTICES – appeal – penalty – two penalties imposed for related conduct – no distinction made before primary judge between forming arrangement and giving effect to arrangement – one penalty appropriate. Trade Practices Act 1974 (Cth): s 4D, s 45, s 45A, s 75B, s 76(1)

R v Associated Northern Collieries (1912) 14 CLR 387 cited Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 cited Browne v Dunn (1893) 6 R 67 considered Briginshaw v Briginshaw (1938) 60 CLR 336 considered Re JRL; Ex parte CJL (1986) 161 CLR 342 cited Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40‑091 cited Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 cited Trade Practices Commission v Carlton & United Breweries Ltd (1991) 24 FCR 532 cited Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41‑375 cited Trade Practices Commission v Prestige Motors Pty Ltd (1994) ATPR 41‑359 cited J McPHEE & SON (AUSTRALIA) PTY LIMITED & ORS v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION VG 162 of 1998 BLACK CJ, LEE & GOLDBERG JJ 12 APRIL 2000 MELBOURNE