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Trade Practices Commission v TNT Australia Pty Ltd

Trade Practices Commission v TNT Australia Pty Ltd

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CATCHWORDS

TRADE PRACTICES )
CIVIL PENALTIES ) - purpose of imposition of a civil penalty - primacy of deterrence - appropriate penalties for conduct amounting to serious systematic and deliberate defiance of the law - propriety of parties agreeing on a "settlement" involving admissions of liability and a joint submission as to the amounts of penalties - ultimate decision remains that of the Court, but an agreement within the range of proper penalties may be accepted by the Court - public interest that very complex and potentially very lengthy penalty proceedings should be so concluded - entitlement of respondents to a discount for the public benefit conferred by their recognition of their liability and withdrawal of their defences - indication of resolve to comply with the law in future - significance for quantum of penalty of the size of a respondent corporation - significance of any evidence of a corporate culture of compliance - principle that total of penalties should be appropriate for the totality of the contraventions where numerous contraventions flow from a single arrangement or set of arrangements.

Trade Practices Act 1974, ss. 45, 45A, 76 and 78.

Trade Practices Commission v. Allied Mills Industries Pty Ltd(No 4) (1981) 37 ALR 256
Commerce Commission v. New Zealand Milk Corporation Ltd [1994] 2 NZLR 730
Trade Practices Commission v. Hymix Industries Pty Limited, unreported, Lockhart J., 25 August 1994
Trade Practices Commission v. CC (New South Wales) Pty Limited, unreported, Lindgren J., 24 November 1994
Trade Practices Commission v. Axive Pty Ltd, unreported, Sheppard J., 15 December 1994
Trade Practices Commission v. CSR Limited (1991) ATPR 52,135
Trade Practices Commission v. Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 17,882
Trade Practices Commission v. Mobil Oil Australia Ltd (1984) 4 FCR 296
Trade Practices Commission v. Prestige Motors Pty Ltd, unreported, Lee J., 18 November 1994
L. Vogel and Son Pty Limited v. Anderson, Minister of State for Customs and Excise for the Commonwealth of Australia (1968) 120 CLR 157
Trade Practices Commission v. Carlton United Breweries Ltd (1990) 24 FCR 532
McDonald v. The Queen (1994) 48 FCR 555
Trade Practices Commission v. Patterson Cheney Pty Ltd (1990) ATPR 51,748
The Queen v. Shannon (1979) 21 SASR 442

R v. Bulger (1990) 2 Qd R 559
Schumacher (1981) 3 A Crim R 441
The Queen v. Hudson (1985) 8 FCR 228
Short v. The Queen, unreported, Davies, von Doussa and Higgins JJ., 13 May 1994
Miller v. Fiona's Clothes Horse of Centre-point Pty Ltd (1989) ATPR 50,515

TRADE PRACTICES COMMISSION v. TNT AUSTRALIA PTY LIMITED & ORS
NG 807 of 1992

Burchett J.
Sydney
31 January 1995

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    NG 807 of 1992
  )
GENERAL DIVISION                 )

BETWEEN: TRADE PRACTICES COMMISSION

Applicant

AND: TNT AUSTRALIA PTY LIMITED

First Respondent

ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PROPRIETARY LIMITED

Second Respondent

MAYNE NICKLESS LIMITED

Third Respondent

PAUL VALENTINE CHADWICK BROWN

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1995] FCA 13
Decision Date: 31 JANUARY 1995

CaseChat Overview and Summary

The case Trade Practices Commission v. TNT Australia Pty Ltd involved proceedings brought by the Trade Practices Commission against three companies and nearly twenty individual respondents for penalties and injunctions for contraventions of Part IV of the Trade Practices Act 1974. The respondents were TNT Australia Pty Limited, Ansett Transport Industries (Operations) Proprietary Limited, Mayne Nickless Limited, and various executives of these companies. The proceedings were anticipated to be lengthy and costly. However, the respondents withdrew their defences and admitted the allegations, jointly submitting to the Court the appropriate penalties they considered should be imposed. The Court accepted the proposed penalties and made orders accordingly.

The legal issues in this case were whether it was proper for parties to negotiate and jointly submit the quantum of penalties to the Court and whether the penalties fixed by the Court were appropriate. The Court found that, provided the negotiated penalties fell within the range of what the Court would have independently fixed, it was proper for the parties to negotiate and jointly submit the penalties. The Court also found the penalties fixed to be appropriate, taking into account the seriousness, deliberateness, and systematic nature of the contraventions, the size of the corporate respondents, and the public benefit resulting from the early disposal of the proceedings.

The Court emphasised the importance of deterrence in fixing penalties under the Trade Practices Act and the need to consider various factors, such as the nature and extent of the contravening conduct, the size of the contravening company, and the degree of power it has. The Court also noted the importance of a corporate culture of compliance and the benefit to the community of the early disposal of lengthy and costly proceedings. The Court made orders imposing pecuniary penalties on the respondents and granted injunctions to restrain them from engaging in similar conduct in the future.

Orders