Trade Practices Commission v BP Australia Ltd

[1985] FCA 607

Re: TRADE PRACTICES COMMISSION
And: BP AUSTRALIA LIMITED
No. G2 of 1985
Trade Practices (Restrictive Practices)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.

CATCHWORDS

Trade Practices (Restrictive Practices) - resale price maintenance - pecuniary penalty - factors to be taken into account.

HEARING

SYDNEY
#DATE 11:12:1985

ORDER

The respondent pay to the Commonwealth of Australia a pecuniary penalty of $20,000 in respect of the matters alleged against it in paragraph 15 of the amended statement of claim.

Pursuant to s.77 of the Trade Practices Act a judgment be entered for the applicant on behalf of the Commonwealth of Australia against the respondent for the sum of $20,000.

The respondent pay to the applicant its costs of the hearing on penalty.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

On 22 October 1985, for the reasons then given, it was declared that the respondent had engaged in the practice of resale price maintenance in regard to the supply of motor spirit in contravention of s.48 of the Trade Practices Act (1974) ("the Act") in the respect alleged in para.15 of the amended statement of claim. The contravention found was that on 8 November 1983, Mr. Brennan, one of the respondent's Sydney metropolitan territory managers, communicated to Mr. Robert Khoury a statement of price that was likely to be understood by Punic Investments Pty. Ltd. ("Punic") as the price below which the motor spirit was not to be sold (see s.96(3)(f)). The Commission now seeks the imposition of a pecuniary penalty pursuant to s.76(1) of the Act.

1. In prescribing a maximum penalty of $250,000 in the case of a body corporate, s.76(1) empowers the court to impose such pecuniary penalty as it determines to be appropriate having regard to all relevant matters including the nature and extent of the act and of any loss or damage suffered as a result of the act, the circumstances in which the act took place and whether the person has previously been found by the Court in proceedings under Part IV to have engaged in any similar conduct. The general approach to be adopted by the Court in the present type of matter was described by Toohey, J. in Trade Practices Commission v. Mobil Oil Australia Ltd. (1985) ATPR 40-503 at pp 46,026-7 and I would respectfully adopt that analysis for present purposes.

2. It should be noted at the outset that the respondent has not previously been found by the Court to have engaged in similar conduct. Nor was it suggested by the Commission that, as a result of the contravention, any particular loss or damage was suffered by any person: Punic's supply was not dislocated in any way and no endeavour was made to show that any consumer suffered any detriment at the retail level.

3. Although the contravention found took place in the context of the respondent's temporary price support scheme, the scheme itself did…