Application of Principles
32 I turn to the application of the principles to the facts of this case.
33 The nature, extent and duration of conduct, and circumstances in which it took place, are summarised at [10]-[15] above. In particular, I note that the contravening conduct consisted of two representations made in a single letter distributed to approximately 8,000 customers and published on Actrol's website. There is no evidence that the representations were repeated by Actrol on subsequent occasions, or made through alternate forms of media.
34 As I have said, the parties contend that there were two contraventions of s 29(1)(i) by Actrol, being a contravention involving an express representation and a contravention involving the implied representation. However, as counsel for the applicant acknowledged, there is a substantial overlap between the matters which render each of the representations false. That is a matter I take into account when determining penalty.
35 Actrol Parts Holdings Pty Ltd, the holding company of Actrol, had consolidated revenue of approximately $220 million in the financial year ending 30 June 2012 and approximately $257 million in the financial year ending 30 June 2013. It is therefore apparent that Actrol has the financial capacity to pay the proposed penalty of $520,000. However, the parties submit, and I accept, that the proposed penalty is nonetheless of sufficient magnitude to achieve the objective of deterrence.
36 There is no evidence before the Court as to the number of customers who, had the reasons for the HFC price increases been properly disclosed, would have sought to source the specified refrigerants from elsewhere at a potentially lower price. It is therefore not possible to quantify the amount of any profit gained by Actrol or loss caused to the customers through the contravention.
37 Actrol's conduct in distributing the letter, which contained the Change in Costs Representation and the Carbon Tax Representation, was deliberate, and, at all material times, Actrol did not have a formal competition and consumer compliance program in place. Indeed, the parties request that I make an order that such a program be established.
38 As to the participation of senior management in the contravening conduct, as I noted above at [8], [9] and [10], the key components of the HFC Refrigerant Strategy were considered and approved by Actrol's Board of Directors, and the letter was drafted by its National Sales and Marketing Manager, and authorised by its Managing Director. I do not think that there is any doubt that these persons are at a senior level within the respondent's company.
39 Actrol voluntarily co-operated with the ACCC's investigation, and, through its legal representatives, participated in constructive discussions with the ACCC that eventuated in the formulation of the statement of agreed facts, the proposed consent orders and these joint submissions. The parties submit, and I accept, that Actrol's willingness to co-operate with the ACCC, and thereby avoid the burden and expense of a complex trial, is relevant to the mitigation of the pecuniary penalty.
40 Actrol has not previously been found to have contravened the ACL or CCA in any way, and the ACCC has never previously commenced legal proceedings against the respondent. This too is relevant to the determination of the appropriate penalty.
41 Having regard to these matters, I am satisfied that a pecuniary penalty of $520,000 is the appropriate penalty.