Australian Competition and Consumer Commission v High Adventure Pty Limited [2005] FCAFC 247

Australian Competition and Consumer Commission v High Adventure Pty Limited [2005] FCAFC 247

The penalty imposed on High Adventure Pty Limited was manifestly inadequate because the primary judge focused on possible financial detriment to the respondents and his own views about competition, while failing to give proper effect to the seriousness of the contravention and the need for specific and general deterrence. A substitute pecuniary penalty of $20,000 was imposed, lower than the Court's assessed appropriate range because the Commission maintained that amount, High Adventure was effectively a one man company, and there was a possible application of the double jeopardy rule.

Jurisdiction
Australia
Judgment Date
02 December 2005
Procedural Posture
Appeal Concerning Pecuniary Penalty for Contravention of S 48 of the Trade Practices Act 1974 (cth) / Appeal From Orders of a Judge of the Federal Court of Australia
Outcome
Appeal allowed; penalty orders against High Adventure Pty Limited set aside and substituted with a pecuniary penalty of $20,000 payable by instalments.
Legal Topics
['resale Price Maintenance' 'pecuniary Penalty' 'manifest Inadequacy' 'deterrence' 'part IV of the Trade Practices Act 1974 (cth)']
['competition and Consumer Law' 'trade Practices' 'civil Penalties'] ['resale Price Maintenance' 'pecuniary Penalty' 'manifest Inadequacy' 'deterrence' 'part IV of the Trade Practices Act 1974 (cth)']

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Procedural Posture

Appeal Concerning Pecuniary Penalty for Contravention of S 48 of the Trade Practices Act 1974 (cth) / Appeal From Orders of a Judge of the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the pecuniary penalty imposed on High Adventure Pty Limited for resale price maintenance was manifestly inadequate.' 'Whether the primary judge failed to give proper weight to deterrence and the seriousness of the contravention when fixing penalty.' 'What substitute pecuniary penalty should be imposed on High Adventure Pty Limited.']

Ratio Decidendi

The penalty imposed on High Adventure Pty Limited was manifestly inadequate because the primary judge focused on possible financial detriment to the respondents and his own views about competition, while failing to give proper effect to the seriousness of the contravention and the need for specific and general deterrence. A substitute pecuniary penalty of $20,000 was imposed, lower than the Court's assessed appropriate range because the Commission maintained that amount, High Adventure was effectively a one man company, and there was a possible application of the double jeopardy rule.

Court Disposition

Appeal allowed; penalty orders against High Adventure Pty Limited set aside and substituted with a pecuniary penalty of $20,000 payable by instalments.

Orders

  • ['The appeal be allowed.' 'Paragraph 4 and 5 of the orders made by Gray J on 10 June 2005 be set aside and, in lieu thereof, the following orders be made:' 'The first respondent pay to the Commonwealth of Australia a pecuniary penalty in the sum of $20,000.' 'The first respondent be at liberty to pay the pecuniary...