Trade Practices Commission v Hymix Industries Pty Ltd
[1994] FCA 637
•25 Aug 1994
637 j 99
JUDGMENT NO. .....n......n.. - . a ,
F
) )
| N W SOUTH WALES DISTRICT REGISW | ) No. NG 537 of 1994 ) ) |
BETWEEN: TRADE PRACTICES COMMISSION Applicant
| 14 SEP 1994 | AND : | HYMIX INDUSTRIES PTY |
| FEDERAL COURT OF | W T E D (trading as HYMIX |
PRINCIPAL D) & ANQB Respondent
25 August 1994
S FOR JUDGMENT
This is a proceeding instituted in the original jurisdiction of the Court by the Trade Practices Commission against two corporate respondents and two natural persons, for recovery of pecuniary penalties pursuant to S. 76 of the Trade Practices Act 1974 (the Act) and for injunctive relief. The proceedings relate to alleged contraventions by the first and second respondents of ss. 45(2)(a)(ii) and 45(2)(b)(ii) of the Act. The proceedings against the third and fourth respondents are brought on the basis that they were directly or indirectly knowingly concerned in or a party to the facts which gave rise to the alleged contraventions.
| The respondents and the applicant have been engaged in discussions for some time and those discussions have resulted | in the parties reaching agreement as to the disposition of the | |
| proceeding. They realize that it is, of course, for the Court to determine whether a contravention has occurred and in particular, what the appropriate penalty should be or what other relief should be granted. They have agreed, subject to the Court's concurrence, that the first and second respondents have contravened the Act as alleged by the applicant and that the third and fourth respondents have been involved in those contraventions. | ||
| They have also agreed again, subject to the Court's concurrence, what the appropriate pecuniary penalties should be in the case of the first and second respondents, and that undertakings should be accepted by the Court in lieu of injunctions granted against the third and fourth respondents. | ||
| The approach to be adopted in these circumstances has been considered by single judges of this Court and by the High Court of New Zealand. The principal case in this country is | ||
| ||
| particular at 41, where his Honour said: |
"It is, of course, true that the penalty has been suggested to me by the agreement of the parties. Uninformed of their agreement, I may have selected a different figure, but I am satisfied that it would not have been very different from theirs. There is from time to time, amongst members of the profession and amongst the public, discussion concerning plea bargaining. Sometimes it is suggested
that it involves disreputable conduct. I t
i s my opinion that that i s so i f i t a t a l l
implicates the court i n private
discussions a s t o what the cour t ' s
a t t i t ude w i l l or would be l i k e l y t o be i f a particular course i s taken. In t h i s case nothing o f that kind has occurred. The parties have made t h e i r own agreement and p u t i t t o the court for approval, not
knowing what i t s a t t i t ude w a s l i k e l y t o
be. That was the course adopted, perhaps i n a l e s s posit ive
way,
i n a
customs
prosecution heard i n the original jur isdic t ion o f the High Court: Chipp (Minister for Customs) v Campbell Beaumont
Trading Pty L t d ( 2 2 December 1969, unreported). The court there accepted the parties' view o f the matter. This , o f course, i s not a criminal case; the l i a b i l i t y i s c i v i l only. But, even i n the most serious criminal cases, i t i s not unusual for the prosecution t o accept a plea t o a l e s ser charge, subject always t o the approval o f the court. I have s a i d what I have only t o explain that the course which the parties have adopted i s both proper and not uncommon, even though perhaps novel i n the comparatively new
f i e l d o f trade practices. "
In The Commerce Commission v New Zealand Milk Corporation
| L t d t h e High Court o f New | Zealand, consti tuted by the Chief |
| Just ice and Mr |
Justice Greig on 28 April 1 9 9 4 , agreed wi th
tha t passage from the judgment o f Sheppard J . and added
| certain observations o f t h e i r own, which appear a t page | 5 o f |
| t h e unreported judgment | i n these terms: |
"We adopt those remarks, and also the Judge's further comments that i n cases such a s t h i s it i s strongly i n the public in t e res t that l i t i g a t i o n should be brought t o a conclusion, and i f possible a t an early date. The Solicitor-General submitted that the procedure adopted i n the present case w a s consonant with those a i m s . O f course, i f consensus cannot be reached the proceedings must be brought and prosecuted i n the normal way. However, the Solicitor-General submitted,
p l a i n l y implicated would r a t h e r it may o f t e n be that defendants who are
acknowledge t h e i r cu lpabi l i t y and would be prepared t o do so i f confident that the regulatory agency would be recommending a s p e c i f i c financial penalty t o the Court. Otherwise, given the high maxima under s 80 , already noted, the r i s k o f large
penalties could cause business i n t e r e s t s
t o defend enforcement proceedings strenuously even where there i s l i t t l e prospect o f defences succeeding, because the defendant considered it necessary t o ensure i t s perception o f cu lpabi l i t y w a s before the Court. Thus a procedure allowing for a negotiated settlement i s i n the i n t e r e s t s o f the parties; it i s
equally i n the i n t e r e s t s o f the community
i n that i t avoids clogging the court l i s t s
with potent ial ly complex and lengthy l i t i g a t i o n , and the attendant expense. Subject t o a reservation, discussed below,
a s t o what may be understood by a 'negotiated se t t l ement ' , we accept those submissions. Further, i n considering the leve l o f the penalty it would be proper for the Court t o take i n t o account the
b e n e f i t t o the community by the early
disposal o f proceedings i n t h i s manner. "
I am i n agreement with the judgment o f both Sheppard J .
and t h e High Court o f New Zealand and I do not th ink I can u s e f u l l y add anything t o what they have said. The same approach was followed by Sheppard J . i n a la t e r case o f Trade Practices Commission v Axive Pty Limited and by Burchett J . i n
| Trade Practices Commission | v TNT A u s t r a l i a Pty Limited | ( 1 0 |
| August | 1 9 9 4 ; unreported). |
The facts need not be related; they have been sufficiently opened to me by counsel for the applicant and Mr Blunt for the respondents; and they appear from the affidavits which have been filed. The facts as disclosed do give rise to serious contraventions of the Act. They involve repetitive conduct, made over a not insubstantial period of time, and the very nature of the conduct denies the essential components of competition, the preservation of which is the primary function of the Act. I see no useful purpose in saying whether the penalties to which the parties have agreed are penalties which this Court, unaided by the evidence as it stands, would have imposed, and it is possible the Court would have imposed higher penalties but I prefer to make no observation about that. It seems to me that the agreement reached is one which reflects broadly and substantially the approach I would have taken in any event.
I take into account the fact that the respondents have been fully cooperative with the applicant in this matter in
| programs which are still currently, as I understand it, being | relation to the implementation in the future of compliance |
| discussed between the parties. I also take into account that in the relevant industry (the supply of pre-mix concrete in the areas of Brisbane and Logan which are, of course, extremely large areas in Australia) the respondents are minor players. As I understand it, the first respondent, Hymix Industries Pty Limited, holds some 7 to 8 per cent of the relevant market share, and Goodmix Concrete Pty Limited, the second respondent, some 5 to 6 per cent of the market share. | |
| In all the circumstances, in my opinion, the appropriate orders are those that have been the subject of agreement. | |
| The Court therefore makes orders by consent in terms of paragraphs 1, 2 and 4 of the Short Minutes of Order initialled by me, dated today and placed with the papers. | |
| The Court accepts the undertakings by the 3rd and 4th respondents by their solicitor set out in paragraph 3 of the Short Minutes. Exhibit one should remain with the papers. |
I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.
LE&&: 25 August 1994
| Solicitors for the Applicant : | Mr S King Australian Government Solicitor |
| Solicitors for the Respondent : | Mr G Blunt Allen Allen & Hemsley |
| Date of Hearing | 25 August 1994 |
| Date of Judgment | 25 August 1994 |
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