The number of contraventions
23 On one view Baiada and Bartter contravened s 29(1)(a) of the ACL each time they caused a Steggles chicken wrapped in packaging containing the impugned representation to be placed on public display and each time an advertisement containing the "free to roam" claim appeared in a magazine. Similarly it could be argued that each of the multiple representations appearing on ACMF's website constituted a separate contravention. The authorities, however, have cautioned against the adoption of such an analysis and developed principles which temper the severity of such an approach.
24 The relevant principles were drawn together by Middleton J in Australian Competition and Consumer Commission v Telstra Corporation Limited (2010) 188 FCR 238 at [231]-[235] where his Honour said:
"[231] In looking at the contraventions in this proceeding, it is useful to refer to the Trade Practices Commission v Bata Shoe Company of Australia Pty Ltd [1980] ATPR 40-161 at 42,277 where Lockhart J talked in terms of the 'same episode' when considering an appropriate penalty:
'Guidance is given in the field of sentencing for criminal offences by the well-known principle that where several offences are heard together and arise out of the same transaction it is a sound working rule that the sentences imposed for those offences should be made concurrent; it is inappropriate to sentence consecutively when the offences were all really involved in the same episode: see R. v. Duff a decision of the full court of this court, judgment delivered 6 December 1979; R. v. Walsh (1965) 109 Sol. J. Pt. 1 150; R. v. Melville (1956) 73 W.N. (N.S.W.) 579; R. v. Hussain Crim. L.R. 712; R. v. Hally (1965) 58 Q.R. 582 and Re: P.J. Kastercum (1972) 56 Cr. App. R. 298.'
[232] Justice Lockhart considered at 42,277 that the contraventions arose out of:
the one course of conduct in that it was directed to Woolworths and reflected the adherence by the respondent to a policy of engaging in resale price maintenance in relation to Woolworths.
[233] He then said at 42,277:
'I accept that the contraventions arose out of the one course or pattern of conduct. Although it is necessary to look at each contravention separately, nevertheless consideration must be given to the facts common to each contravention.'
[234] In this way, Lockhart J regarded the seven contraventions as falling into three categories relating to the conversations giving rise to the contraventions, although from 'one course or pattern'. From there, consideration was given to the facts common to each contravention. However, Lockhart J did not treat the case as involving only one contravention even though arising from 'one course or pattern', namely the adherence to a policy of engaging in resale price maintenance in relation to Woolworths.
[235] In the final analysis, in applying the totality principle, the question is one of discretion in coming to the correct, adequate and appropriate penalties. In discussing the totality principle, the majority of the Full Court in Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461 said at [41]- [42]:
'As noted above (see [15]), the principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, the Court must ensure that the offender is not punished twice for the same conduct. In other words, where two offences arise as a result of the same or related conduct that is not a disentitling factor to the application of the single course of conduct principle but a reason why a Court may have regard to that principle, as one of the applicable sentencing principles, to guide it in the exercise of the sentencing discretion: Johnson v The Queen (2004) 205 ALR 346 at [3]-[4] and [34] and Attorney-General v Tichy (1982) 30 SASR 84 at 92-93. It is a tool of analysis (Tichy 30 SASR 84 at 93) which a Court is not compelled to utilise: Royer v Western Australia [2009] WASCA 139 at [21]-[34] and [153]-[156].'
A Court is not compelled to utilise the principle because, as Owen JA said in Royer [2009] WASCA 139 at [28],"[d]iscretionary judgments require the weighing of elements, not the formulation of adjustable rules or benchmarks". The exercise of the sentencing discretion does not fall to be exercised in a vacuum. It is a matter of judgment to be exercised according to the facts of each case and having regard to conflicting sentencing objectives: see McHugh J in AB v The Queen (1999) 198 CLR 111 at [14]. For the same reasons, and contrary to the appellants' submissions, even if offences are properly characterised as arising from the one transaction or a single course of conduct, a judge is not obliged to apply concurrent terms if the resulting effective term fails to reflect the degree of criminality involved. Or, in the case of fines, a judge is not obliged to start from the premise that if there is a single course of conduct, the maximum fine is, in the present case, $110,000 for the CFMEU and $22,000 in the case of Mr Mates.'" (Original emphasis).
His Honour continued at [250]-[251]:
"[250] A number of different approaches in this proceeding could be taken to imposing a penalty. The Court could look to each contravention, consider the appropriate penalty taking into account the totality principle, and then apply any appropriate discount. This was the approach submitted by the ACCC. The Court could group together each exchange or each State, or focus on each period of inability to gain access, and view the contraventions included within those groups as appropriately to be treated together for the purpose of assessing the appropriate penalty. Alternatively, the Court could treat the admitted contraventions as all following from the same cause, and with the maximum penalty being $10 million, and then consider the appropriate discount. This is the approach submitted by Telstra. Another approach would be to look at the capped sites and uncapped sites, and treat that as a basis for grouping the contraventions.
[251] There is no scientific approach or arithmetic formula to be applied in determining the appropriate penalty. The circumstances of each contravention need to be looked at, taking into account all the circumstances pertaining to the contravention. I have already indicated what I regard as important and significant considerations, but the other matters I have raised are taken into account."
25 These passages were quoted with approval by the Full Court in Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249 at 262-3 ("Singtel Optus").
26 Having regard to these principles the ACCC submitted that:
Baiada and Bartter should each be treated as having committed a single contravention of s 29(1)(a) in respect of the course of conduct of marketing their respective packaged products;
Baiada and Bartter should jointly be liable for a single contravention of s 29(1)(a) by promoting the print advertising campaign; and
ACMF should be treated as having committed a single contravention by publishing the series of impugned statements on its website.
27 Baiada and Bartter contended that the representations made during the print advertising campaign and on the packaging of their products should be treated, for these purposes, as a single course of conduct. They supported this contention on the basis that:
all involved promotion of the Steggles brand;
all contained substantially the same impugned representations; and
the representation, wherever published, was directed to the same end: the dispelling of the notion that meat chickens in Australia are raised in cages.
Each of these propositions is uncontroversial.
28 The ACCC relied on the Full Court's decision in Singtel Optus. In that case the Court found that the placement of advertisements for broadband data plans in 11 different mediums constituted 11 categories of contravention. Although the 11 advertisements formed part of a single campaign, the strategy to which it gave effect was implemented in different ways in the different mediums. There were television commercials, flyers, newspaper advertisements and a billboard advertisement. The Court said (at 262) that it was "simply not the case that the same conduct gave rise to all the contraventions … different conduct was involved in each category of contravention." The Court treated each of the advertisements as constituting separate contravening conduct because "the content of each message was different" and, in some cases, the advertisements promoted different products.
29 In TPG Internet Pty Ltd v Australian Competition and Consumer Commission (2012) 210 FCR 277 at 295 another Full Court also dealt with impugned advertisements. It distinguished Singtel Optus. It found that the "content of the advertisements across the range of media was broadly the same and the vice complained of and found to be established by the primary judge was essentially the same in each case." (at 295). The Court identified two contraventions on the part of the respondent by reference to the representation that a service could be purchased for a certain price per month without more and the failure to prominently display a single price in one advertisement.
30 In my view the circumstances of the present case are distinguishable from those considered in Singtel Optus. Although the advertising containing the "free to roam" representation appeared in different places (the print advertising and the packaging), it was substantially the same, impugned, representation which appeared. It was used as part of the same campaign which was designed to disabuse readers of the misconception that Steggles chickens were raised in cages. In these ways the facts of the present case are more akin to those of TPG than to Singtel Optus. See also ACCC v Marksun Australia Pty Ltd [2011] FCA 695 at [71]-[81]; ACCC v EDirect Pty Ltd (in liq) [2012] FCA 976 at [74].
31 As distinct but related entities, Baiada and Bartter both marketed chickens under the Steggles brand. The "free to roam" representation was, as has already been noted, related to chickens marketed under that brand. In this context I note that "Steggles' chickens were supplied to fast food outlets such as KFC and Red Rooster. This was disclosed on Baiada and Bartter's website even though the consumers of chicken products sold from the fast food outlets would not have been exposed to the Steggles brand at those outlets.
32 For these reasons, in fixing a penalty for the conduct of Baiada and Bartter, I will proceed on the basis that they have jointly committed a single contravention of the legislation. I doubt, that, from a practical viewpoint, proceeding in this way would materially affect the quantum of any penalty to be imposed: had I accepted that multiple contraventions had occurred, it would still have been necessary to apply the totality principle in settling on a monetary sum.
33 It was common ground that, in publishing the various impugned representations on its website, ACMF engaged in a single course of conduct. I consider that it is appropriate to so treat ACMF's conduct.