Australian Competition & Consumer Commission v Kokos International Pty Ltd (No 3) [2008] FCA 20

Australian Competition & Consumer Commission v Kokos International Pty Ltd (No 3) [2008] FCA 20

The admitted conduct was blatant price fixing, but the appropriate penalties were reduced by the fifth and sixth respondents' lack of awareness that they were breaking the law, absence of concealment, admissions, cooperation with the ACCC, absence of prior contraventions, limited means, the small scale and financial position of the Nanuri business, the fifth respondent's disadvantage from adhering to the agreements, and the very low risk of reoffending. A penalty of $3,000 for each of the fifth respondent's three contraventions and $1,500 for the sixth respondent's involvement was sufficient for deterrence.

Jurisdiction
Australia
Judgment Date
17 January 2008
Procedural Posture
Trade Practices Proceeding Concerning Price Fixing Contraventions / Reasons and Orders Determining Pecuniary Penalties and Related Relief for the Fifth and Sixth Respondents
Outcome
Orders made imposing injunctions, a compliance seminar requirement, pecuniary penalties, and costs orders against the fifth and sixth respondents; declaratory orders stood over.
Legal Topics
['price Fixing' 'pecuniary Penalties' 'injunctions' 'consent Orders' 'deterrence' 'competition Code of Western Australia S 45 Contraventions']
['competition and Consumer Law' 'trade Practices'] ['price Fixing' 'pecuniary Penalties' 'injunctions' 'consent Orders' 'deterrence' 'competition Code of Western Australia S 45 Contraventions']

Case Brief

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Procedural Posture

Trade Practices Proceeding Concerning Price Fixing Contraventions / Reasons and Orders Determining Pecuniary Penalties and Related Relief for the Fifth and Sixth Respondents

Legal Issues

  1. 1 ['Whether pecuniary penalties should be imposed on the fifth respondent for admitted contraventions involving oral and written price fixing agreements and giving effect to those agreements.' "Whether a pecuniary penalty should be imposed on the sixth respondent for being knowingly concerned in the fifth respondent's contraventions." 'What penalties were appropriate having regard to deterrence, admissions, cooperation, lack of prior contraventions, limited means, lack of awareness of the law, and relative size of the business.']

Ratio Decidendi

The admitted conduct was blatant price fixing, but the appropriate penalties were reduced by the fifth and sixth respondents' lack of awareness that they were breaking the law, absence of concealment, admissions, cooperation with the ACCC, absence of prior contraventions, limited means, the small scale and financial position of the Nanuri business, the fifth respondent's disadvantage from adhering to the agreements, and the very low risk of reoffending. A penalty of $3,000 for each of the fifth respondent's three contraventions and $1,500 for the sixth respondent's involvement was sufficient for deterrence.

Court Disposition

Orders made imposing injunctions, a compliance seminar requirement, pecuniary penalties, and costs orders against the fifth and sixth respondents; declaratory orders stood over.

Orders

  • ['The declaratory orders sought against the fifth and sixth respondents be stood over to the completion of these proceedings or to such earlier date as may be sought by the ACCC.' 'The fifth respondent is restrained for three years from making, giving effect to, or attempting to make, arrive at or give effect to any...