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Australian Competition and Consumer Commission v Apple Pty Limited 
Citation: Australian Competition and Consumer Commission v Apple Pty Limited  FCA 646 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v APPLE PTY LIMITED (ACN 002 510 054) and APPLE INC
File number: Judge: Date of judgment: Catchwords:
VIn 271 of2012
BROMHI!;RG J 21 June 2012 TRADE PRACTICES - Australian Consumer Law s 33 conduct liable to mislead the public as to a characteristic of a good - misleading representation as to compatibility Australian Consumer Law s 224 - imposition of pecuniary penalty - agreed penalty - relevant considerations in assessing whether agreed penalty is appropriate. Australian Consumer Law, Schedule 2 to the Competition and Consumer Act 2010 (Cth) ss 33, 224(1), 224(2), 224(3) Australian Competition and Consumer Commission v Harvey Norman Holdings Limited  FCA 1407 Australian Competition and Consumer Commission v TPG Internet Ply Ltd (No 2)  FCA 629 NW Frozen Foods Ply Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 Australian Competition and Consumer Commission v Singtel Optus Ply Ltd (No 4)  FeA 761 Single I Optus Pty Ltd v Australian Competition and Consumer Commission [2012J FCAFC 20 Australian Competition and Consumer Commission v SMS Global Ply Ltd  FCA 855 Australian Competition and Consumer Commission v Gourmet Goody's Family Restaurant Pty Ltd  FCA 1216 Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169 Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd  FCAFC 72
-2 Ponzio v B&P Caelli Constructions Ply Ltd (2007) 158 FCR 543 Hills v Sutton [2007J FCA 2033 Wells v LocarnoManagement Ply Ltd [2008J FCA 1034 Alfred v Construction, Forestry, Mining and Energy Union [2011J FCA 556 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2012J FCA 189 Fair Work Ombudsman v Tiger Telco Ply Ltd (in liq) [2012J FCA 479 Australian Competition and Consumer Commission v Rural Press Ltd  FCA 1065 Australian Competition and Consumer Commission v Leahy Petroleum Ply Ltd (No 3) (2005) 215 ALR 301 Australian Competition and Consumer Commission v Telstra Corporation Ltd (2010) 188 FCR 238 Date of hearing: Place: Division: Category: Number of paragraphs: Counsel for the Applicant: Solicitor for the Applicant: Counsel for the First Respondent: Solicitor for the First Respondent: 8 June 2012 Melbourne GENERAL DIVISION Catchwords 53 Mr C Golvan SC with Ms R Brezzi Australian Government Solicitor Mr A Archibald QC with Mr P Anastassiou SC and Mr J Slattery Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA GENERAL BETWEEN: DISTRICT DIVISION AUSTRALIAN COMMISSION Applicant COMPETITION REGISTRY VID 271 of 2012 AND CONSUMER
APPLE PTY LIMITED First Respondent APPLE INC Second Respondent
(ACN 002 510 054)
JUDGE: DATE OF ORDER: WHERE MADE:
BROMBERGJ 21 JUNE 2012 MELBOURNE AS FOLLOWS:
THE COURT DECLARES 1.
The first respondent ("Apple") did between 8 March 2012 to 12 May 2012, by use of the product designator "iPad with WiFi + 40" in each ofthe following ways: (i) online on Apple's webpage at the URL www.apple.com/aui and other
webpages linked to that webpage, and on the Apple online store at the URL http://store.apple.com/aul; (ii) in signage contained on demonstration units of iPads at retail stores operated by Apple; (iii) in promotional and marketing material provided to Apple resellers by Apple, for use in retail stores operated by those resellers; and (iv) in promotional and marketing material subject to the control of Apple on
websites operated by reseUers of Apple, impliedly represent that an "iPad with WiFi + 40" ("the Device") could connect directly to the Telstra LTE mobile data network in Australia, which it could not do, and thereby, in each case, engaged in conduct that was liable to mislead the public as to a characteristic of the Device, in contravention of s 33 of the Australian Consumer Law, being Schedule 2 of the Competition and Consumer Act 2010 (Cth).
AND THE COURT ORDERS AS FOLLOWS (NOTING THE CONSENT OF THE
PARTIES TO THE MAKING OF THESE ORDERS): 1. Within 14 days of the date of service of these Orders, Apple pay to the
Commonwealth of Australia a pecuniary penalty in respect of the contraventions of s 33 of the Australian Consumer Law, being Schedule 2 of the Competition and Consumer Act 2010 (Cth), in the total amount of $2.25 million. 2. Within 14 days of the date of service of these Orders, Apple pay the Applicant a contribution to its costs in the amount of$300,000. 3. The proceeding be otherwise dismissed.
Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION BETWEEN
VID 271 of 2012 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
(ACN 002 510 054)
JUDGE: DATE: PLACE:
BROMBERGJ 21 JUNE 2012 MELBOURNE REASONS FOR JUDGMENT
A person must not engage in conduct that is liable to mislead the public as to the characteristics of the goods the person sells. That command is one of the requirements imposed on those engaged in trade or commerce, by s 33 of the Australian Consumer Law, being Schedule 2 of the Competition and Consumer Act 2010 (Cth) ("the ACL").
It is a command, that the first respondent ("Apple") admits it disobeyed.
admitted breach of the law occurred in the period 8 March 2012 to 12 May 2012 ("the relevant period"). It related to the promotion and sale by Apple and Apple resellers of a particular model of a well-known computer tablet device called an "iPad". Apple is one of the most popular suppliers of computer devices and related products in Australia and one of the largest participants in the tablet industry. The "iPad" is a major product of Apple.
A new series of the iPad was launched in a number of countries on 7 March 2012 and was available for Australian consumers to pre-order from 8 March 2012. The new iPad began to be supplied to Australian consumers from 16 March 2012.
The new iPad came in a range of models. One model of the new iPad ("the cellular model") is able to access the internet by connecting to a mobile data network via a cellular
- 2connection known as a SIM card. During the relevant period, the cellular model of the iPad was promoted and sold by both Apple and some one hundred and fifty Apple resellers under the brand or product designator "iPad with WiFi + 40". Apple resellers were required by Apple to use promotional and marketing materials containing the product designator. The term "4G", which appeared in the product designator for the cellular model of the new iPad ("the product designator"), is a term familiar to Australian consumers. September Corporation 2011, one of Australia's largest telecommunications providers, From 27 Telstra
began to operate a Long Term Evolution mobile data
network in Australia and promoted that network to consumers as a "40" network ("the Telstra LTE network"). When it is used in the Australian marketplace in relation to mobile
data networks, the term "4G" is used exclusively to describe either LTE networks or Wimax networks. During the relevant period, Telstra was the only carrier to use an LTE network
commercially. The understanding of Australian consumers of the term "4G" in relation to data
mobile networks, is to be distinguished from that relating to other mobile data networks and, in particular, those which have been promoted in Australia as "30" networks. No Australian carrier uses the term "40" to describe any network which operates on HSPA, HSPA+ or DC-HSDPA networks. Those networks have always been referred to by Australian carriers as "3G" networks. Apple has also referred to those networks as "3G".
Since the launch of Telstra's LTE network, Telstra has extensively promoted that network as a "4G" network which supports substantially faster download and upload speeds, as well as providing a more responsive internet connection as compared with those provided by "3G" networks. The following extract, taken from a Telstra promotion, provides an example of the
way in which the relative speed capacities of "40" and "30" networks have been promoted: 4G SPEEDS: With capable devices customers can experience typical download speeds of 2Mbps - 40Mbps, and typical upload speeds of IMbps - 10Mbps in all capital CBD's (meaning within Skrn from the GPO) associated airports and selected regional areas (meaning 3krn of the regional town centre) covering more than 40% of the population. In other coverage areas, customers will automatically switch over to Telstra's fastest available 30 HSPA (High Speed Packet Access technology) enabled network speeds.
30 HSPA ENABLED SPEEDS: With capable devices customers can experience typical download speeds of 1.1Mbps-20Mbps in all capital CBD's, airports, much of
-3the associated metropolitan areas and many regional areas covering more than 60% of the population Outside these areas, the remaining metropolitan areas and many other regional and rural locations typical download speeds are 550kbps to 8Mbps covering more than 97% of the population, and elsewhere 550kbps to 3Mbps. Typical customer upload speeds are 300kbps-3Mbps in all capital cities and major regional areas covering more than 93% of the population and elsewhere 300kbpsl Mbps,
For a device, such as the new iPad cellular model, to operate on a particular network the device must be capable of receiving and sending signals at the same transmission band or radio frequency at which the network operates and must also use the same protocol or 'language' as the network. The new iPad cellular model can connect to "3G" mobile data networks in Australia which operate at the 850MHz, 900MHz and 2100MHz frequencies. It can also connect to an
LIE network that sends and receives data at certain bands of the 700MHz or 2100MHz frequencies. However, the new iFad cellular model cannot send or receive data at the
frequency bands of the Telstra LTE network, which operates at 1800MHz. Therein lay the problem. During the relevant period, Apple used the product
designator "iPad with WiFi + 4G", in relation to a device which could not directly connect with the only commercially available LTE network understood by Australian consumers to be a "4G" network. Apple admits that by its use of the product designator "iPad with WiFi + 4G" during the relevant period, in trade or commerce, it impliedly represented that the new iPad cellular model could connect directly to the Telstra LTE mobile data network in Australia. admits that by doing so, its conduct was liable to mislead consumers Apple
in relation to a
characteristic of the new iPad cellular model, namely, its ability to connect to the Telstra LIE mobile data network. It is that representation about that characteristic, which resulted in the admitted contraventions of s 33 of the ACL. The use by Apple of the product designator "iPad with WiFi + 4G", which contained the implied representation, occurred in the following ways:
-4• online on Apple's linked to that webpage at the URL www.apple.com/au/ webpage, and on the Apple online and other webpages store at the URL
http./Istore.apple.com/au/; • in signage contained on demonstration Apple; • in promotional and marketing material provided to Apple resellers by Apple, for use in retail stores operated by those resellers; and • in promotional and marketing material subject to the control of Apple on web sites operated by resellers of Apple. Each of the facts to which I have already referred, and to which I will shortly refer, have been put before the Court as facts agreed between Apple and the applicant (''the ACCC"). The agreed facts are contained in an Agreed Statement of Facts and also in the By reference to those agreed facts, the units of iPads at retail stores operated by
Outlines of Joint Submissions filed by the parties.
ACCC and Apple jointly contend that the Court should be satisfied of four contraventions by Apple of s 33 of the ACL. Draft consent orders have been filed proposing that a declaration be made and that a pecuniary penalty in the amount of $2.25 million be imposed in relation to the four admitted contraventions. Further orders are proposed which would require Apple to
pay a $300,000 contribution to the ACCC's costs and for this proceeding to be otherwise dismissed. Whilst the consent of the parties is a consideration of some importance, as the
submissions of both Apple and the ACCC recognise, the question of relief remains in the discretion of the Court. Apple's admitted contraventions were not trivial, and the penalty to be imposed requires serious and careful consideration. However, having examined each of
the relevant considerations, I am satisfied that the penalty proposed by Apple and the ACCC should be regarded as an appropriate penalty and that the other relief proposed be granted. I will now turn to explain why I think that to be so.
The Guiding Legal Principles
Section 224(1)(a)(ii) of the ACL empowers the Court, in respect of a contravention of s 33, to order a contravener to pay "such pecuniary penalty, in respect of each act or omission ... as the court determines to be appropriate". While the Court must have regard to
-5 "all relevant matters" there are three considerations expressly specified by s 224(2). are:
(a) (b) (c) the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; and the circumstances in which the act or omission took place,' and whether the person has previously been found by a court in proceedings under Chapter 4 or this Part to have engaged in any similar conduct.
Section 224(2) of the ACL is in substantially identical terms to what was s 76E(2) of the Trade Practices Act 1974 (Cth) ('the TPA"). A number of judgments of this Court have confirmed that (with some exception) the guiding principles relevant to the imposition of a civil penalty under the former s 76 of the TPA (which dealt with penalties for restrictive trade practices) had application to s 76E(2): see the cases referred to at  of Australian  FCA
Competition and Consumer Commission v Harvey Norman Holdings Limited
1407 (Collier J) and see further Australian Competition and Consumer Commission v TPG Internet Ply Ltd (No 2)  FCA 629 at -[61J (Murphy J). Given the substantial
identicality of s 224(2) and the former s 76E(2), it follows that the guiding principles developed for the former s 76 of the TPA are of relevance. A checklist of matters which judges of this Court have regarded as of assistance is set out in the judgment of Burchett and Kiefel JJ in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 292. An updated checklist of guiding considerations is set out by Perram J in Australian Competition and Consumer On appeal, that
Commission v Singtel Optus Pty Ltd (No 4) [2011J FCA 761 at .
checklist was referred to without demur by Keane CJ, Finn and Gilmour JJ at  of Singtel Optus Pty Ltd v Australian Competition and Consumer Commission  FCAFC 20. The list identifies the relevant non-mandatory factors to include:
the size of the contravening company; the deliberateness of the contravention and the period over which it extended; whether the contravention arose out of the conduct of senior management of the contravener or at some lower level; whether the contravener has a corporate culture conducive to compliance with [the ACL] as evidenced by educational programmes and disciplinary or other corrective measures in response to an acknowledged contravention; whether the contravener has shown a disposition to cooperate with the authorities responsible for the enforcement of [the ACL] in relation to the contravention; whether the contravener has engaged in similar conduct in the past; the financial position of the contravener; and
-6• 18 whether the contravening conduct was systematic, deliberate or covert.
However, before turning to the mandatory and non-mandatory factors which need to be considered in the application of s 224 of the ACL, there are two other important
considerations that should be emphasised at the outset. The first is that many authorities have recognised that the primary reason for the imposition of a penalty, in the context of a
provision such as s 224, is the need to deter repetition of the contravening conduct by the contravener ('the need for specific deterrence') and to deter others who might be tempted to engage in similar contraventions ('the need for general deterrence'): Singtel Optus at  and - (Keane CJ, Finn and Gilmour JJ); Australian Competition and Consumer
Commission v SMS Global Ply Ltd  FCA 855 at  (Murphy J); Australian Competition and Consumer Commission v Gourmet Goody's Family Restaurant Ply Ltd
 FCA 1216 at  (Jagot J); TPG Internet (No 2) at - (Murphy J). As the Full Court in NWFrozen Foods said at 294-295:
The Court should leave no room for any impression of weakness in its resolve to impose penalties sufficient to ensure the deterrence, not only of the parties actually before it, but also of others who might be tempted to think that contravention would pay ... 20
In Australian Competition and Consumer Commission v ABB Transmission and
Distribution Ltd (No 2) (2002) 190 ALR 169 at -, Finkelstein J observed that
deterrence was the means by which a corporation contravening is to be hindered from engaging in conduct and that it followed that the penalty must be set "at a meaningful
level". That is, it must be sufficiently large to be an effective deterrent. More recently, the Full Court in Single I Optus at  emphasised that a penalty must be fixed so that:
Generally speaking, those engaged in trade and commerce must be deterred from the cynical calculation involved in weighing up the risk of penalty against the profits to be made from contravention. 22
The Full Court continued at  that:
The court must fashion a penalty which makes it clear to [the contravener], and to the market, that the cost of courting a risk of contravention of the Act cannot be regarded as [sic] acceptable cost of doing business.
The other matter of importance which requires due recognition is that an agreement has been reached between Apple and the ACCC as to the appropriate relief. As the parties have proposed an agreed penalty to be imposed in these proceedings, the relevant question for the Court is different to that which would otherwise have been the case. In the context of an agreed penalty, the Court's task is to assess whether the agreed penalty is "appropriate in all the circumstances": Minister for Industry, Tourism and Resources v Mobil Oil Australia
Pty Ltd  FCAFC 72 at  (Branson, Sackville and Gyles JJ), where the Full Court adopted the reasoning of Burchett and Kiefel JJ (with whom Carr J agreed) in NW Frozen Foods at 298-299. In Mobil at , the Full Court listed the principles enunciated in NW Frozen Foods including that: • • • it is the Court's responsibility to determine the appropriate penalty; determining the quantum of a penalty is not an exact science; there is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy; • the view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty; • in determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case; • where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so in the circumstances of the case; • where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement; • the question is whether that figure
in the Court's
VIew, appropriate in the
circumstances of the case; • in answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure; and • the agreed penalty will be appropriate if within the 'permissible range'.
In Ponzio v B&P Caelli Constructions Ply Ltd (2007) 158 FCR 543 at 565, Jessup J expressed the view, which a number of judges (including myself) have agreed with, that the phrase "permissible range" may be regarded as referring to that range that would be permitted by the Court, which is neither manifestly inadequate nor manifestly excessive: Hills v Sutton  FCA 2033 at  (Tracey J); Wells v Locarno Management Ply Ltd  FCA 1034 at  (Jessup J); Alfred v Construction, Forestry, Mining and Energy Union  FCA 556 at  (Tracey J); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union  FCA 189 at  (Bromberg J); Fair Work Ombudsman v Tiger Telco Ply Ltd (in liq) [2012J FCA 479 at  (Bromberg J).
Is the proposed penalty within the permissible range?
The most concerning aspect of Apple's contravention of s 33, is the deliberate nature of its conduct. Apple does not seek to deny the deliberateness of its conduct and there are no facts before me which seek to excuse or explain the conduct, other than that the conduct occurred at the behest of Apple's parent company, the second respondent ("Apple Inc"). The promotional campaign for the "iPad with WiFi + 40" was settled and deployed by Apple Inc. Apple Inc provided marketing material to Apple for the campaign to market the "iPad with WiFi + 40" in Australia. Those materials were then provided by Apple to its various resellers in Australia. of companies. The controlling hand of Apple Inc may also be discerned from the fact that, despite the ACCC and others having raised their concerns with Apple regarding its conduct on a number of occasions from 15 March 2012, Apple did not desist in its use of "iPad with WiFi + 40" until 12 May 2012, when the product designator was changed globally. Apple was aware that the "iPad with WiFi + 40" was not compatible with the Telstra LTE network. That matter was raised with Apple as early as 8 March 2012. In my view, the risk of a contravention of s 33 of the ACL was reasonably obvious, and must have been recognised as substantial by those within Apple familiar with the Australian market's understanding of the term "40". In that context, and in the absence of The same campaign was used worldwide by the Apple group
any other explanation, the facts to which I have just referred, suggest that Apple's desire for
-9global uniformity was given a greater priority than the need to ensure compliance with the ACL. Conduct of that kind is serious and unacceptable. Multi-national corporations who (through their subsidiaries or otherwise) operate in and profit from the Australian market, must respect that market and the laws which serve to regulate it and protect its participants. Those who design global campaigns, and those in and perceptions of
Australia who adopt them, need to be attuned to the understandings
Australian consumers and ensure that representations made by such campaigns will not serve to mislead. The penalty imposed in this case, needs to make that message clear. The reach of Apple's conduct was extensive and substantial. concerned with the functionality The class of consumer
of the new iPad cellular model was a very broad
demographic, being the general public. I have identified the categories of use of the product designator at  above. There was wide publication of the product designator in a very
short period of time, including because of Apple's launch of the new iPad and the use of the product designator on Apple's website, at its retail stores and at over one hundred and fifty
reseller outlets. The product designator "iPad with WiFi + 40" was used in the context of an Australia-wide multi-media campaign, which received extensive media coverage. The number of new iPad cellular model devices sold by Apple in the relevant period was very substantial. The specific number of sales has been provided to the Court, but is not
here disclosed to protect its confidentiality.
It is not possible to say, with any certainty, how many Australian consumers were misled by Apple's use of the term "40". Nor is it possible to discern the level of
disappointment (as distinct from proven loss or damage) involved for those consumers who were misled. I have no doubt that given the promotion by Telstra of the superiority of its 40 network, many purchasers will have felt decidedly short-changed, despite the fact that only a very small percentage of them took up the opportunity of a refund, offered by Apple on 28 March 2012 as part of the undertakings given to the Court. Beyond that, all that I am able to do on the evidence before me, is recognise that the wide-ranging reach of the conduct is likely to have resulted in many hundreds of thousands of consumers being exposed to
- 10Apple's misleading use of the term "4G". The potential for harm may be taken into account in determining the seriousness of a contravention: Australian Competition and Consumer Commission v Rural Press Ltd  FCA 1065 at  (Mansfield J). That potential, adds significantly to the seriousness with which the contraventions of s 33 must be regarded. However, for reasons to which I now turn, the potentially adverse effect of the conduct was likely to have been substantially diminished by about 4 April 2012. In assessing the extent of the conduct and its potential effect, I have taken into account the action taken by Apple in furtherance of the undertaking it gave to the Court on 28 March 2012, on the return of the ACCC' s application for interlocutory relief. Apple
undertook to prepare a statement advising consumers that the new iPad cellular model was not compatible with current Australian 4G LIE networks and WiMax networks. By 4 April
2012 (about halfway through the relevant period), that statement was prominently displayed on Apple's website and at the points of sale in its stores and those of its Australian resellers. I regard that action, and the related media attention which accompanied the giving of the undertakings by Apple, as likely to have very substantially diminished the potential for
consumers to be misled. I have also taken into account, as an ameliorating factor to the severity of any penalty, that there is no evidence before me as to any actual loss or damage caused to consumers or to Apple's competitors.
In that latter respect, all that the evidence identified was that during the
relevant period, a third party tablet device was being promoted by the use of the "4G" descriptor. That device was compatible with the Telstra LIE network. Addressing the circumstances in which the conduct took place and the need for specific deterrence, should also involve consideration of the size and financial position of the contravener. As Goldberg J said in Australian Competition and Consumer Commission v
Leahy Petroleum (No 3)  FCA 265 at [39J:
The penalty imposed must be substantial enough that the party realises the seriousness of its conduct and is not inclined to repeat such conduct. Obviously the sum required to achieve this object will be larger where the Court is setting a penalty for a company with vast resources.
See further Rural Press at  (Mansfield J) and TPG Internet (No 2) at [114)- (Murphy J).
- 11 39
For that purpose, confidential information was provided to the Court. issue as to the capacity of Apple to pay a substantial penalty.
There is no
The matter of far greater
concern is what level should a penalty be set in order that it will be meaningful for a corporation with the substantial net assets and net profitability of Apple. The agreed facts do not permit an assessment of whether or not Apple has a corporate culture conducive to compliance with the ACL, which is evidenced by educational programs and disciplinary contraventions. or other corrective measures taken in response to acknowledged
For reasons I have earlier adverted to, the agreed facts do suggest that
Apple's senior management was involved in the conduct. In Apple's favour, the agreed facts do however, accept that Apple has never before been engaged in conduct similar to that which is the subject of this proceeding. I have given that factor significant weight. I have also given Apple credit for its disposition to co-operate with the ACCC, the responsible demonstrated authority for the enforcement by Apple's preparedness of the ACL. That co-operation was in part
to give undertakings
on 28 March 2012 which,
amongst other benefits, avoided a contested interlocutory hearing. Apple agreed to proposed penalties and participated in the making of joint submissions, which avoided the need for a contested final hearing. Apple's acknowledgement of its liability, entitles it to a reduction in the amount that would otherwise be assessed: Leahy Petroleum Pty Ltd (No 3) at - (Goldberg J). There is nearly always an issue in cases like this as to how many contraventions should be attributed to conduct of a similar nature, which occurred in a range of arenas and over a period of time. Where one course or pattern of conduct is involved, it will often be appropriate, in order that a contravener not be dealt with twice for the same conduct, to characterise the conduct as constituting a single course of conduct. Alternatively, it may be
appropriate to group distinct aspects of the conduct into categories and apply a single penalty to each category: Singtel Optus at - (Keane CJ, Finn and Gilmour JJ). As Middleton J said in Australian Competition and Consumer Commission v Telstra Corporation Ltd (2010) 188 FCR 238 at , in a passage cited with approval by the Full Court in Singtel Optus at : In the final analysis, in applying the totality principle, the question is one of
- 12discretion in coming to the correct, adequate and appropriate penalties.
In this case, the parties have proposed an agreed penalty based on four contraventions of s 33 of the ACL. Each of the categories of conduct identified at [12J above has been
treated as constituting a single course of conduct. By that route, and with the maximum penalty of $1.1 million set for a corporation by s 224(3) of the ACL in mind, it was submitted that the maximum penalty that could be imposed is $4.4 million. I accept the proposed grouping of the conduct into four contraventions as appropriate. Each of the different mediums utilised by Apple to promote the misleading representation is sufficiently distinct to be characterised as a separate category of contravention: Singtel Optus at [53J (Keane CJ, Finn and Gilmour JJ). The parties have not attempted to assign a specific penalty to each contravention. I accept that in the context of the totality principle, there is
good sense in that approach: Rural Press at  (Mansfield J). Although I have been referred to penalties imposed in other cases, I have not derived any assistance from cases which inevitably turn on their own distinct facts and circumstances: Singtel Optus at  (Keane CJ, Finn and Gilmour 1J); Rural Press at  (Mansfield J).
Conclusion as to Penalty
The imposition of a penalty is a discretionary exercise, involving the synthesising of relevant factors in order to arrive at a conclusion as to where the contravenor's conduct sits on a scale of wrongdoing set by reference to the maximum penalty which could be imposed. Taking that approach to the question of whether the proposed penalty is appropriate, in the context ofthe relevant factors earlier identified, I have concluded that it is. The proposed penalty is neither manifestly inadequate nor manifestly excessive. conduct concerned was deliberate and very serious. The
It exposed a significant proportion of A strong message
Australian consumers of tablet devices to a misleading representation. through a substantial penalty is required.
I harbour a concern that the size and financial However, I do not
strength of Apple diminishes the meaningfulness of the penalty proposed.
perceive any further transgressions by Apple to be likely. The fact of the litigation and the media attention which it has drawn, will no doubt be a sober reminder to Apple, and others
- 13 who rely on their brand image that, as well as a penalty, there will likely be an intangible cost involved in a contravention of the ACL. The impact of the undertaking given by Apple, together with the absence of any evidence of loss or damage and the significant cooperation shown by Apple, all mitigate against the imposition of a harsher penalty than that agreed to. I have also arrived at my conclusion, in light of the regulator's view that the agreed penalty is appropriate. overly scrutinising Further, there is a public interest in courts exercising restraint in settlements, so that settlements may be encouraged and
potentially lengthy and expensive litigation avoided. I will impose a total penalty on Apple of $2.25 million for four contraventions of s 33 of the ACL.
Declaration and other Orders
I agree with the joint submission of the parties that there is a proper and appropriate basis, including that of advancing the public interest, for the Court to exercise its
discretionary power to make a declaration under s 21 of the Federal Court of Australia Act
The substance of the declaration the Court will make is consistent with that
proposed by the parties, however, the terms of the declaration I will make have been fashioned to identify the four contraventions involved. As proposed by the parties, I will also make orders that Apple pay a contribution to the ACCC's costs in the amount of$300,000 and that the proceeding be otherwise dismissed.
1 certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.
21 June 2012
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