Australian Competition & Consumer Commission v George Weston Foods Limited [2004] FCA 1093

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v George Weston Foods Limited [2004] FCA 1093 TRADE PRACTICES – contravention of Trade Practices Act 1974 (Cth) – penalty – factors to consider in determining penalty – attempt to induce price fixing – attempt made secretly by executive director of corporation on behalf of corporation – attempt not successful – prior contraventions by corporation – corporation maintained serious and well-designed compliance program – compliance program implemented following prior contraventions – guilty director aware of compliance obligations – proceedings against guilty director discontinued – employment of guilty director terminated upon discovery of contraventions – fact of termination for contraventions not publicised – guilty director subsequently re-engaged by corporation as consultant – weight to be given to ACCC submission TRADE PRACTICES – contravention of Trade Practices Act 1974 (Cth) – attempted price fixing – remedies – injunctions – whether negative injunction appropriate remedy in circumstances – whether positive injunction appropriate remedy in circumstances – factors to consider in determining whether to grant negative or positive injunction Trade Practices Act 1974 (Cth), ss 45, 45A, 76, 80 ACCC v J McPhee & Son (Australia) Pty Ltd (No 5) (1998) ATPR 41–628 referred to BMW Australia Ltd v ACCC [2004] FCAFC 167; (2004) 207 ALR 452 cited Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; (2004) ATPR 41-993 cited Rural Press Ltd v ACCC (2002) 118 FCR 236 cited AUSTRALIAN COMPETITION & CONSUMER COMMISSION v GEORGE WESTON FOODS LIMITED (ACN 008 429 632) AND PAUL BENEDICT LONERAGAN N 1295 OF 2002 GYLES J 25 AUGUST 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1295 OF 2002