Australian Securities and Investments Commission v DOD Bookkeeping Pty Ltd

A__ustralian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450

Australian Competition and Consumer Commission v Employsure Pty Ltd [2023] FCAFC 5; (2023) 407 ALR 302

Australian Competition and Consumer Commission v Reckitt Benckiser Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25

Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243

Australian Securities and Investments Commission v AGM Markets Pty Ltd (in liquidation) (No 4) [2020] FCA 1499; (2020) 148 ACSR 511

Australian Securities and Investments Commission v Dixon Advisory & Superannuation Services Pty Ltd [2022] FCA 1105

Australian Securities and Investments Commission v DOD Bookkeeping Pty Ltd (in liq), in the matter of DOD Bookkeeping Pty Ltd (in liq) [2023] FCA 1622

Australian Securities and Investments Commission v Forex Capital Trading Pty Limited [2021] FCA 570

Australian Securities and Investments Commission v Select AFSL Pty Ltd (No 3) [2023] FCA 723; (2023) 171 ACSR 331

Australian Securities and Investments Commission v The Cash Store Pty Ltd (in liq) (No 2) [2015] FCA 93

Australian Securities and Investments Commission v Westpac Banking Corporation [2019] FCA 2147

Australian Securities and Investments Commission v Westpac Securities Administration Limited, in the matter of Westpac Securities Administration Limited [2021] FCA 1008; (2021) 156 ACSR 614

Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285

Nyoni v Murphy [2018] FCAFC 75; (2018) 261 FCR 164

Trade Practices Commission v CSR Ltd [1990] FCA 762; [1991] ATPR 41-076

1. Characterising a number of contraventions as one course of conduct does not mean that the course of conduct is capped at the maximum penalty for one contravention. The maximum penalty for the course of conduct is not restricted to the prescribed statutory maximum penalty for any single contravening act: Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd (t/a Bet365) (No 2) [2016] FCA 698 at [24]. It does not proceed as if it is only one contravention: Australian Competition and Consumer Commission v Unique International College Pty Ltd [2019] FCA 1773 at [52]. The penalties ultimately imposed are of an appropriate deterrent value, having regard to the actual, substantive wrongdoing.

The "course of conduct" or "one transaction" principle means that consideration should be given to whether the contraventions arise out of the same course of conduct or the one transaction, to determine whether it is appropriate that a "concurrent" or single penalty should be imposed for the contraventions. The principle was explained by Middleton and Gordon JJ in Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 194 IR 461; 269 ALR 1 at [39]:

The principle of totality requires the Court to make a "final check" of the penalties to be imposed on a wrongdoer, considered as a whole, to ensure that the total penalty does not exceed what is proper or appropriate for the entire contravening conduct: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1997] FCA 450; (1997) 75 FCR 238; 145 ALR 36 at 53, citing Mill v R [1988] HCA 70; (1988) 166 CLR 59; 83 ALR 1.

(2023) 407 ALR 302

(2018) 262 FCR 243

(2005) 228 CLR 357

(1988) 166 CLR 59

(2022) 274 CLR 450

(1996) 71 FCR 285

(2018) 261 FCR 164

(2010) 269 ALR 1

(2010) 194 IR 461

(1997) 75 FCR 238

(2016) 340 ALR 25