Australian Competition & Consumer Commission v George Weston Foods Limited

Federal Court of Australia|2004-08-25|Before: Gyles J

REASONS FOR JUDGMENT 1 This is a proceeding brought by the applicant Australian Competition & Consumer Commission (ACCC) in relation to admitted breaches of the Trade Practices Act 1974 (Cth) (the Act) in attempting to contravene s 45 (incorporating s 45A) of the Act. The ACCC seeks negative and positive orders and the imposition of a penalty against George Weston Foods Limited (Weston). The proceedings against Paul Benedict Loneragan (Loneragan) were discontinued at the conclusion of argument on this hearing. In November 1999 Weston was a manufacturer and supplier of wheaten flour within a division of its business known as Weston Cereal Industries. Loneragan was the Divisional Chief Executive of Weston Cereal Industries, which included the flour milling division. His duties included responsibility for the final approval of the price of flour and other products. Loneragan was also a director of Weston from 1997. 2 In short summary, the contravening conduct consisted of Loneragan telephoning Mr John Gary Honan (John Honan), the Marketing Manager for the Manildra Group of companies, associated with Manildra Flour Mills Pty Ltd (Manildra), and Mr Peter Simpson (Simpson), Manildra's General Manager, in an attempt to fix the price of flour. 3 Manildra was at that time a competitor of Weston in the wholesale supply of wheaten flour in south-east Queensland, New South Wales, the Australian Capital Territory and Victoria. The approximate market shares for the flour milling industry in Australia at the relevant time were: Goodman Fielder 46 per cent, Weston 31 per cent, Manildra 8 per cent and a number of independent flour millers (in total) 15 per cent. Turnover of the flour milling industry exceeded $1.37 billion in 1999-2000. Flour is the fundamental building block for much of the food industry. The turnover of bread, cake and pastry and biscuit sectors alone exceeded $3.4 billion in the same financial year. The revenue from the sale of goods by Weston for the year ended 31 July 2000 was $1,556,174,000. The operating profit before abnormal items and income tax was $68,104,000.

Penalty 4 The main issue debated has been the appropriate level of penalty. The ACCC submits that the appropriate penalty is $1.5 million. The relevant provision of s 76 of the Act is that: 'the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each act or omission by the person to which this section applies, as the Court determines to be appropriate having regard to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Court in proceedings under this Part … to have engaged in any similar conduct.' The maximum penalty for each act or omission is $10 million in the case of a body corporate.

Nature and Extent of the Act or Omission AND THE CIRCUMSTANCES IN WHICH THE ACT OR OMISSION TOOK PLACE 5 On or about 24 November 1999, Loneragan went to a public telephone box at Kirribilli and telephoned Simpson, whose duties included the implementation of flour pricing. The call was received on Simpson's mobile phone whilst in his car and he took the call on the hands-free speaker function. John Honan was in the car. Loneragan told Simpson that Weston intended to increase the price of flour and asked what Manildra intended to do about prices. He probably suggested that it should co-operate. Simpson's response was that they would need to talk to Dick Honan about prices. That was a reference to Mr John Thomas Honan Jnr (Dick Honan), who was the Chairman of Manildra. Simpson and John Honan reported the approach from Loneragan to Dick Honan, who instructed them not to return the call. A couple of weeks later, Loneragan rang John Honan at his office at Auburn and again stated that Weston was putting up the flour price and that it was looking for co-operation from Manildra. The response again was that it would need to be passed on to Dick Honan. It was passed on and the instruction was not to call Loneragan back. 6 Loneragan gave evidence that his intention in making these calls was an attempt to achieve an agreement with Manildra that it would put up its price for flour and maintain the price as he was concerned that, if Weston and Goodman Fielder put up their prices of flour, the price may not be sustainable unless Manildra also raised its price. He made the telephone call from the public telephone box because he knew that he should not be telephoning a competitor in that way. Loneragan was well aware of the relevant provisions of the Act. It is also noteworthy that Loneragan says that, at the time of the calls, he understood that Goodman Fielder had either decided to or was proposing to put up the price of flour charged to its customers, that understanding being derived from discussions he had had with a Mr McDowell from Goodman Fielder, who had told him that this was the intention of Goodman Fielder. 7 On 24 January 2000, Dick Honan called upon Mr John Pascoe (Pascoe), the Chairman of directors of Weston, by prearrangement. He raised a commercial issue concerning gluten with Pascoe and went on: 'I said: "John, I am also here on another matter which is more serious. If you don't take action on this gluten thing, I am going to see the ACCC about this other matter." Pascoe said: "What is this other matter?" I said: "Paul Loneragan has rung our office seeking our co-operation to increase the price of flour." Pascoe said: "Dick, I have to bring in another director." Mr Pascoe excused himself from the room and came back with a colleague who he introduced as Mr Forgie. Mr Pascoe invited me to repeat the point I had just raised. I briefly repeated the gluten issues and continued the conversation in words to the following effect: I said: "Let me come to the point. Paul Loneragan called my son on two occasions and I have two employees who would swear an affidavit that Loneragan called them seeking Manildra's co-operation to raise the price of flour. Unless you call me by 5 pm this afternoon, I will go to the ACCC about Loneragan calling our office." Both Mr Pascoe and Mr Forgie expressed shock and surprise at this. Mr Pascoe used strong language to express his shock and surprise. The conversation continued in words to the following effect: Pascoe said: "He knows that he cannot do that, he will have to be fired." I said: "I didn't come here to get anyone fired; I came to see you about stopping the importation and re-export of gluten; otherwise I am going to the ACCC with this information."' Later that day, Pascoe informed Honan that the commercial matter was resolved in the manner sought by Honan. 8 Pascoe has not given evidence and Loneragan was not cross-examined. What happened between Loneragan and Pascoe emerges from examinations of each of them pursuant to s 155 of the Act, from certain documents and from some hearsay evidence. 9 It appears that Pascoe interviewed Loneragan concerning Honan's allegations on 25 January, having already obtained legal advice. Loneragan admitted the substance of Honan's allegation, although he backed and filled to some extent as to the subject matter, apparently claiming at one stage that he was concerned with prices for toll milling in Queensland. Loneragan persisted with that version in the course of his s 155 examination. Pascoe was not satisfied with his explanation. As he said, nobody would believe that a conversation from a public telephone box at Kirribilli with a competitor was innocent. It is of some significance that no notes were taken of the meeting between Pascoe and Loneragan. Pascoe considered whether the company should make disclosure to the ACCC but elected not to do so. 10 Pascoe met Loneragan on 4 February and told Loneragan that he could no longer continue his employment with the company as his conduct was something that could not be accepted in the case of a director of the company. 11 On 14 February 2000 Pascoe wrote to Loneragan as follows: 'As you know, the Company has resolved to terminate your employment for serious misconduct. However, to allow you to exit from the Company with dignity, we are prepared to allow you to work out one month's notice. I want to make it absolutely clear that, although you will retain your title of Divisional Chief Executive of Weston Cereal Industries, you have no authority to make executive decisions on behalf of the Company or to represent that you have authority to bind the Company during the month of notice. Mr. Douglas Forgie or myself will assume responsibility for all executive decisions relating to Weston Cereal Industries with immediate effect. You may not make any financial decision in relation to any matter with a value or cost to the Company which exceeds Twenty-five thousand dollars ($25,000.00). In addition, you are not to communicate with any competitor of the Company during the notice period. If you have any doubt at all as to how this direction should be interpreted, please discuss it with me immediately before you take any decision. I need to make it absolutely clear that any breach or disregard of this direction will result in the summary termination of your employment without compensation.' 12 On 16 February Pascoe distributed the following notice to certain senior executives: 'PAUL LONERAGAN Paul Loneragan has indicated an intention to leave the Company at the end of March. He has previously resigned as a Director. Paul has had a long and distinguished career in the milling and baking industries. He was responsible for the significant growth in George Weston Foods Limited's cereals business. I am sure all those who have worked with Paul wish him every success in his next endeavours. His departure is most regrettable.' 13 A Deed of Release was entered into between Weston and Loneragan dated 29 March 2000. Amongst other things, this involved the payment of a gross amount of $461,787 to Loneragan. That was said to be the equivalent of one year's salary. 14 Later, Loneragan was (through his company) engaged by Weston as a consultant from April 2000 at 'the two day rate equivalent to your salary on resignation and expenses'. Although the evidence is not very satisfactory, that arrangement appears to have continued in one form or another until at least October 2003, notwithstanding that Pascoe said in his s 155 examination that the practice had ceased by late 2001. 15 No evidence was led as to the basis upon which Loneragan had been remunerated in his role as Executive Director in charge of Cereals Division and, in particular, there is no evidence as to any incentive payments depending upon profit levels achieved, notwithstanding the fact that I indicated that that was, or might be, a relevant consideration. There was no written contract of employment between Weston and Loneragan and no contractual duration of employment.

Other contraventions 16 In 1981 Weston was ordered to pay a penalty of $50,000 in relation to a contravention of s 45 of the Act involving fixing the price of liquid glucose. It is of some significance that glucose is a by-product of flour milling and that, taking account of industry rationalisation since, much the same parties were involved in that case as are involved in this case. In fact, the price war which formed the background to that case was sparked by the entry of Manildra into the market. The circumstances are sufficiently outlined in Trade Practices Commission v Allied Mills Industries Pty Ltd (No 4) (1981) 37 ALR 225; 60 FLR 1 and the decision in relation to penalty (which was an agreed penalty with the Trade Practices Commission) is reported as Trade Practices Commission v Allied Mills Industries Pty Ltd (1981) ATPR 40-252. The amount of the penalty was one-fifth of the statutory maximum penalty at that time. The equivalent today is $2 million. The contravening conduct had taken place in 1976, which was in the very early days of the operation of the Act. The evidence indicates that Pascoe was appointed a director of Weston on 12 May 1981. The penalty was imposed by Sheppard J on 7 October 1981. Pascoe gave evidence at the s 155 examination that he had been the solicitor for Weston for some years before joining it. 17 On 30 May 1997 Goldberg J imposed penalties upon Weston in respect of two contraventions of the Act involving price fixing and three contraventions of the Act involving resale price maintenance. The combined penalty for the price fixing contraventions was $750,000. The total penalty for the resale price maintenance contraventions was $500,000. The circumstances are set out in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238. The price fixing was somewhat unusual in that it involved Weston succumbing to pressure from a large retail chain and agreeing to fix prices in relation to a particular retail outlet. The contravening conduct took place in 1995. 18 On 25 May 2000 Goldberg J imposed a fine of $900,000 in respect of price fixing involving biscuits supplied to retailers in Tasmania. It concerned an arrangement with two retailers which ended a price war and effectively fixed the price of biscuits so far as those competing retailers were concerned. The contravening conduct occurred three days after the imposition of penalties by Goldberg J on 30 May 1997. The circumstances are set out in Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR 41-763.

Other considerations 19 As the attempt here was not successful, there was no actual loss or damage occasioned by it. However, the potential loss and damage to the public was very great. The industry is large and strategic as it affects staple foods. 20 I have been provided with a plethora of authority as to the considerations which are said to be relevant going beyond those specifically identified in s 76. Those authorities are very useful but cannot fetter the statutory discretion being exercised. I have considered the written and oral submissions of counsel and the evidence. There is no need to recite all of these. I will indicate those matters which I regard as of particular relevance in this case. 21 It is necessary to say something about the litigation itself. I have referred to the fact that a very early decision was made not to approach the ACCC. On the contrary, until recently, Weston had defended the case with some determination, including a serious interlocutory skirmish concerning legal professional privilege (Australian Competition and Consumer Commission v George Weston Foods Ltd (2003) 129 FCR 298). That position only changed after the filing by the ACCC of affidavits by Loneragan, which effectively admitted the contravention. In my opinion, Weston is entitled to very little consideration on account of the ultimate admission of contravention. It was perfectly apparent that, for good reason, Pascoe did not accept the prevarications of Loneragan at the first interview. The first-hand evidence of each of the Honans and Simpson, together with the admission by Loneragan of his telephoning Simpson and Honan twice, on the first occasion from the public telephone box, made it virtually inevitable that the ACCC would succeed if the matter were to proceed to trial. The affidavits from Loneragan confirmed the obvious. 22 One aspect of the course of the proceedings which needs to be considered is the discontinuance by the ACCC against Loneragan. Counsel for Weston has placed considerable emphasis upon that result in circumstances where there is no evidence that any other person was involved in the contravention apart from Loneragan. That feature of the case is unexplained. The mere fact of his giving evidence for the ACCC could hardly have justified that course. However, it is not a function of the Court to second guess or supervise the decision of the ACCC in that respect. I can only assume that the decision was properly taken, having regard to factors which are not limited to this proceeding. It is, however, a factor to be taken into account in imposing a penalty upon the corporation. 23 Weston has led a body of evidence as to the development of its trade practices compliance program following the criticisms of Goldberg J in 1997. I am satisfied that the program is a serious and well-designed endeavour to ensure compliance with the Act. The problem is that it has little to do with the conduct exemplified by this case, namely, the deliberate action of an executive director of the company. In my opinion, the evidence called on behalf of Weston does not adequately come to grips with that issue. The only witness called had no personal involvement in the discussions with Loneragan or with the commercial background to the matter. It is no disrespect to him to say that he was outranked by both Pascoe and Loneragan. No explanation is proffered as to why Loneragan would have acted in this way. It is not to be assumed that he simply took leave of his senses. Something in his arrangements with the company must have motivated him to act as he did. An alternative hypothesis, of course, is that this kind of activity was commonplace in a tightly organised oligopoly and that this incident only came to light because of Dick Honan's desire to play it as a card in a collateral commercial dispute. The evidence given by Loneragan as to his discussion with the officer of Goodman Fielder is to be noted. Neither side seems to have been concerned to examine the circumstances in any depth in this case. All I need say is that I am not satisfied that this was simply an isolated act of madness by Loneragan. It was an act done for and on behalf of Weston by an officer at the highest level. On the other hand, I cannot make any positive findings which account for Loneragan's conduct. 24 It is possible to assess the manner in which Weston dealt with the issue once it was raised. Dismissing Loneragan was correct. However, there are some unsatisfactory features about what occurred. There was apparently no official disclosure of the fact that he had been dismissed to any other employee of Weston. The opportunity was not taken to demonstrate what would occur in the event of breach of the Act by a senior employee and director. That would have been more effective than any compliance program. Loneragan was generously treated in relation to severance pay. He was dismissed for gross misconduct. He had no written contract of employment or any guaranteed term of employment. These decisions are sought to be justified by the receipt of legal advice as to defamation on the one hand and an action for wrongful dismissal on the other. That legal advice has not been tendered and no author has been called. Weston has gone to considerable lengths to avoid any disclosure of that legal advice in the course of these proceedings. In the absence of that evidence and in the light of the circumstances, I do not take that explanation seriously. 25 I am fortified in declining to do so by the fact that Loneragan was virtually immediately re-employed as a consultant on a two day a week salary basis on his existing rate. That decision cannot be justified on the basis of legal advice. It is sought to be justified on the basis of his particular skills and knowledge and on the basis that he was in no position to influence pricing. No evidence from any relevant decision maker in this respect has been called. Hearsay evidence, which is not objected to, may be admissible but is not entitled to any real weight on an issue like this. My concern is underlined by the evidence given by Pascoe at his s 155 examination. He plainly disagreed with the decision to engage Loneragan as a consultant and apparently thought that it had ended during 2001. Pascoe had been the Chief Executive Officer and Deputy Chairman of Weston until December 1999 when he became Non-Executive Chairman. Apparently he continued to act as Chief Executive until his successor, Mr Weinman, took over in about March or April of 2000. His evidence included the following: 'Q. What was the reason for your opposition to Mr Loneragan's employment as a consultant?

A. To the best of my knowledge he's no longer a consultant. When Mr Jackson was out here on his last visit I raised the issue of Mr Loneragan with him and said that I objected very strongly to him continuing as a consultant, and that any skills that he had that the company lacked should have been well and truly covered, and I spoke to Mr Weinman after speaking to Mr Jackson and said that the arrangements with Mr Loneragan should be brought to an end.

Q. I'm just looking at your diary, I think it accounts with we have a record of at least a visit by Mr Jackson. I'm sorry, I'm looking at your diary for February 1999 when apparently Mr Jackson visited but obviously the occasion you're thinking of is - -

A. Yes. Mr Jackson visited Australia - can I look at these to see if I can find any record of it. He did visit Australia within the last - -

Q. I don't think we have a record of it, Mr Pascoe.

A. Sorry. I probably - I don't seem to either but he was in Australia and - -

A. Yes, I am. I think it would have been within the last three or four months.

Q. So had Mr Loneragan been employed as a consultant from about April 2000 until about three or four months ago?

Q. Do you in fact know whether Mr Weinman complied with your direction to him to cease engaging Mr Loneragan as a consultant?

Q. It would be easy enough for you to find out whether that was right or wrong, wouldn't it?

Q. Do you have any reason to suspect Mr Weinman might not have complied with your direction?

A. No. I think because it had Mr Jackson's backing I believe he would comply with it.

GREISS: Q. Mr Pascoe, you said earlier that it would send the wrong message to keep Mr Loneragan on board. Could you just explain that please?

A. I felt that Paul Loneragan's employment had to be terminated. I was happy for him to work out a notice period because the company was going through a very difficult period with a lot of instability at the time. But although I felt really sorry for him, because I thought he'd been stupid, the reality was he had engaged in conduct that had put the company at a serious risk and I felt that he had been treated appropriately and the company didn't owe it to him to keep him on as a consultant and that the company needed to move on and, you know, there must be other people in the market with whatever skills Paul Loneragan had.

Q. So you thought it would send the wrong message to whom?

A. I thought it sent the wrong message to Paul. I thought it sent the wrong message to Marvin Weinman and I thought that, in the event that this ever became public, it sent the wrong message to everyone in the company.

Q. So it wasn't so much a message to the company that you were concerned about at the time, the other employees of the company?

A. I thought it was just totally inappropriate for him to be there.

OSLINGTON: Commissioner, you might like to mark the letters of 8 and 9 February.

A. I think if I could say, bearing in mind that one of the things that I didn't say was, when Dick Honan saw me and originally said what was happening with Paul he made the comment that he thought the commission might be aware of what had happened anyway.

GREISS: Q. But the matter hadn't been made public insofar as the other employees of the company were concerned, by anyone?

Pascoe continued as Chairman of Weston until very recently.

26 It is not quite clear from the evidence when the ACCC first communicated any interest in the matter to Weston. It is plain from Pascoe's evidence that it was reasonable to assume that there would be some interest. Documents were being provided by Weston to the ACCC by June 2000. The s 155 examinations took place towards the end of 2001. It is obvious from the s 155 examinations that the subject matter of those investigations extended well beyond the particular conduct in issue in this proceeding. This proceeding was commenced on 5 December 2002. On the evidence before me the conclusion is open that Weston was keeping Loneragan 'on side' during the ACCC investigations. Whether that is so or not, there is much concerning the contravening conduct and its aftermath which has not been satisfactorily explained.

Decision on Penalty 27 The objective circumstances show a deliberate attempt to breach the most fundamental prohibition in Pt IV of the Act at the highest level of a very substantial corporation with a very poor record of prior contraventions. What is more, the conduct is typical cartel behaviour, very similar in substance to that in which the company was involved in the glucose price fixing case. Such behaviour is notoriously difficult to detect. In those cases where it is detected, deterrence demands a heavy penalty. 28 In my opinion, the suggested penalty of $1.5 million is very much at the low end of the range in this case. I indicated to counsel during the hearing that I did not regard myself as in any way bound to limit myself to that figure. Nonetheless it is in the range. I am prepared to give weight to the submission by the ACCC, although not as much as in the case of a joint submission (cf Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; (2004) ATPR 41‑993). Taking all matters into consideration, I fix the penalty at $1.5 million.

NEGATIVE INJUNCTION 29 The ACCC seeks an injunction against similar contravention for a period of four years. That is opposed and reference is made to remarks by Heerey J in ACCC v J McPhee & Son (Australia) Pty Ltd (No 5) (1998) ATPR 41-628 at 41,629. 30 In my opinion, the injunction sought is appropriate in this case. This is the fourth contravention by Weston. Injunctions are routinely granted in relation to breaches of the Act. Section 80 is deliberately framed to give maximum flexibility to the Court. I see every reason for making an order in relation to contravention of one of the most important prohibitions in Pt IV of the Act. It is difficult to see the reason for a time limit in relation to a properly framed injunction, bearing in mind s 80(3). However, the order sought will be made.

Positive injunction - compliance program 31 I am not persuaded that the orders sought concerning a compliance program should be made in this case. I have said that I am satisfied that the existing compliance program is serious and well designed. No compliance program can effectively deal with deliberate breaches by those at board level. There is also a question as to the form of the program that is proposed (Rural Press Ltd v ACCC (2002) 118 FCR 236 at [173]; BMW Australia Ltd v ACCC [2004] FCAFC 167; (2004) 207 ALR 452 at [42]-[52]).

Costs 32 Weston will be ordered to pay the costs of the ACCC. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate: Dated: 25 August 2004 Counsel for the Applicant: I Faulkner SC; D Godwin

Solicitor for the Applicant: Australian Government solicitor

Counsel for the First Respondent: IM Jackman SC

Solicitor for the First Respondent: Allens Arthur Robinson

Solicitor for the Second Respondent: Thomson Playford

Date of Hearing: 16 August 2004

Date of Judgment: 25 August 2004

Trade Practices Act 1974(Cth)

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