The Court considered what was required in order to accept the orders.

The TPC brought action against a number of parties for competition law contraventions. Hooker Mill Products Pty Ltd (fourth respondent) withdrew its original defence and submitted orders for penalty of $50,000 and an injunction.

Justice Sheppard accepted that there had been a contravention and that the proposed penalty was appropriate. The following key passage explained this finding:

It is, of course, true that the penalty has been suggested to me by the agreement of the parties. Uninformed of their agreement, I may have selected a different figure, but I am satisfied that it would not have been very different from theirs. There is from time to time, amongst members of the profession and amongst the public, discussion concerning plea bargaining. Sometimes it is suggested that it involves disreputable conduct. It is my opinion that that is so if it at all implicates the Court in private discussions as to what the Court's attitude will or would be likely to be if a particular course is taken. In this case nothing of that kind has occurred. The parties have made their own agreement and put it to the Court for approval, not knowing what its attitude was likely to be. ... the course which the parties have adopted is both proper and not uncommon, even though perhaps novel in the comparatively new field of trade practices.

Justice Sheppard noted :

The liabilitty of a person to a penalty is imposed by s.76 of the Trade Practices Act 1974 which relevantly provides that if the Court is satisfied that a person has contravened a provision of Part IV of the Act the Court may order the person to pay to the Commonwealth such pecuniary penalty not exceeding $250,000, in the case of a body corporate, in respect of each act or omission by the person as the Court determines to be appropriate having regard to all relevant matters.

I must therefore be satisfied that the fourth respondent is in breach of the Act and that the amount of any penalty is appropriate in all the circumstances.

I have no hesitation in saying that I am satisfied of the breach. I have held there is a case to answer and the fourth respondent has ... withdrawn its defence.

As to penalty, it is necessary to bear in mind that the maximum penalty for which a corporation is liable under s 76 for any one breach of the Act is $250,000. Here, more than one breach is alleged and, by reason of the withdrawal of the defence, admitted, but it would not be appropriate to impose substantive penalties for each breach because each arises out of the one transaction ...

... Because the case against the remaining four respondents is proceeding, it is undesirable to say much about the appropriateness of the figure. I do say, however, that the case is by no means in the class of the worst cases one could imagine under the relevant section, s 45. In particular, there is no evidence to suggest that the public was affected very much, if at all, by what was done, and the evidence tends to establish that the arrangement or understanding had a comparatively short life, certainly no longer than three months and probably less. ...

I am satisfied, having taken these matters into account and some other matters which I do not mention, that a penalty of $50,000 is proper and appropriate.

It is, of course, true that the penalty has been suggested to me by the agreement of the parties. Uninformed of their agreement, I may have selected a different figure, but I am satisfied that it would not have been very different from theirs. There is from time to time, amongst members of the profession and amongst the public, discussion concerning plea bargaining. Sometimes it is suggested that it involves disreputable conduct. It is my opinion that that is so if it at all implicates the Court in private discussions as to what the Court's attitude will or would be likely to be if a particular course is taken. In this case nothing of that kind has occurred. The parties have made their own agreement and put it to the Court for approval, not knowing what its attitude was likely to be. ... the course which the parties have adopted is both proper and not uncommon, even though perhaps novel in the comparatively new field of trade practices.

His Honour went on to consider whether it was appropriate to enter judgment now given that proceedigns were continuing against the remaining respondents. His Honour observed:

All things being equal, it is always important to bring litigation or any part of it to a conclusion as soon as possible. It is in the public interest that litigation should finish. ...

His Honour concluded that it was appropriate to enter judgment against only one of the respondents at this stage, even though the others may succeed 'in the defences which they have raised.'

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