Australian Competition & Consumer Commission v George Weston Foods Ltd [2000] FCA 690

FEDERAL COURT OF AUSTRALIA

ACCC v George Weston Foods Ltd [2000] FCA 690 TRADE PRACTICES – attempt to contravene Trade Practices Act 1974 (Cth) – attempt to induce price fixing – attempt not successful – number of attempts – intention of contraveners.

TRADE PRACTICES – penalty – purpose of penalty – attempt to induce contravention – attempt admitted – factors to consider in imposing penalty – prior contravention – effect on penalty of mitigating circumstances – contravener co‑operated with Australian Competition and Consumer Commission – existence of compliance regime – compliance regime failed. Trade Practices Act 1974 (Cth): s 45(2), s 76 Trade Practices Commission v Parkfield Operations Pty Ltd [1985] ATPR 41‑639 cited Trade Practices Commission v Tubemakers of Australia Ltd (1983) 76 FLR 455 cited Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238; 145 ALR 36 cited NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 cited Trade Practices Commission v ICI Operations Pty Ltd [1991] ATPR 41-153 cited. AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v GEORGE WESTON FOODS LIMITED & ORS No VG 583 of 1998 GOLDBERG J MELBOURNE 25 MAY 2000

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY No VG 583 of 1999

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: GEORGE WESTON FOODS LIMITED

(008 429 632)

First Respondent

PETER GILBERT

Second Respondent

PHILLIP McLENNAN

Third Respondent

JUDGE: GOLDBERG J

DATE: 25 MAY 2000

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Introduction 1 The applicant, Australian Competition and Consumer Commission ("the Commission"), seeks declaratory and injunctive relief and an order that the first respondent, George Weston Foods Limited ("George Weston"), pay a pecuniary penalty in respect of an attempt by George Weston and two of its employees to induce two retailers to contravene s 45(2) of the Trade Practices Act 1974 (Cth) ("the Act"). The attempt to induce the contravention is admitted and the parties have filed a statement of agreed facts. There has not been a joint submission as to any particular penalty or range of penalties which should be imposed and each party has made submissions relating to the matters by reference to which the Court should determine the appropriate pecuniary penalty. 2 The contravening conduct is that George Weston by its employees, the second respondent, Peter Gilbert and the third respondent, Phillip McLennan, attempted to induce two competing retailers, Chickenfeed Bargain Stores ("Chickenfeed") and Purity Supermarkets ("Purity"), who carry on business in southern Tasmania, to contravene s 45(2)(a)(ii) and s 45(2)(b)(ii) of the Act by making and giving effect to a price fixing arrangement in respect of the retail sale of packaged biscuits sold under the brand name "Lots O' Cookies" in southern Tasmania. 3 It should be noted that although the attempt was to induce a contravention of s 45(2) of the Act, George Weston did not contravene the Act. The responsibility of George Weston for its conduct arises pursuant to s 76 of the Act and it is that conduct which attracts a penalty. Section 76(1)(d) provides that where a person attempts to induce another person to contravene the Act that person is liable to a penalty. The person does not commit a contravention of the Act itself but rather is exposed to liability for being involved in an attempt to bring about a contravention.