Australian Competition and Consumer Commission v TEAC Australia Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 28 November 2007
• Neutral Citation: [2007] FCA 1859

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v TEAC Australia Pty Ltd [2007] FCA 1859

TRADE PRACTICES – Resale price maintenance – agreed facts – consent orders sought – consideration of factors relevant to penalty

Trade Practices Act 1974 (Cth), ss 48, 76, 80, 80C, 86D, 96

Australian Competition and Consumer Commission v Humax Pty Ltd [2005] FCA 706 cited

Australian Consumer and Competition Commission v Midland Brick Company Pty Ltd (2004) 207 ALR 329 cited

Rural Press Limited v Australian Consumer and Competition Commission (2003) 216 CLR 53 cited

Australian Consumer and Competition Commission v Francis (2004) 142 FCR 1 cited

Australian Consumer and Competition Commission v Digital Products [2006] FCA 1732 cited

Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 cited

Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 cited

NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission (1997) 71 FCR 285 cited

J McPhee & Son (Aust) Pty Ltd v Australian Consumer and Competition Commission (2000) 172 ALR 532 cited

Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 cited

Australian Consumer and Competition Commission v Jurlique International Pty Ltd [2007] FCA 79 cited

Australian Consumer and Competition Commission v Knight [2007] FCA 1011 cited

Australian Consumer and Competition Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 cited

Australian Consumer and Competition Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 cited

Trade Practices Commission v TNT Australia Pty Ltd & Ors (1995) ATPR 41-375 cited

Australian Consumer and Competition Commission v ABB Power Transmission Pty Ltd (2004) ATPR 42-011; [2004] FCA 819 cited

Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432 cited

Australian Competition and Consumer Commission v Westminster Retail Pty Ltd (in liquidation) [2005] FCA 1299 cited

Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 cited

Australian Competition and Consumer Commission v Cambur Pty Ltd [2006] FCA 1027 cited

Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665 cited

Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liquidation) [2005] FCA 1212 cited

Trade Practices Commission v ICI Australia Operations Pty Ltd (1991) 105 ALR 115 cited

Australian Consumer and Competition Commission v DM Faulkner Pty Ltd [2004] FCA 1666 cited

Australian Consumer and Competition Commission v Dermalogica Pty Ltd [2005] 215 ALR 482 cited

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v TEAC AUSTRALIA PTY LTD (ACN 113 998 048) AND WARREN ALLISON

VID 563 OF 2007

KENNY J

28 NOVEMBER 2007

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 563 OF 2007

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	TEAC AUSTRALIA PTY LTD (ACN 113 998 048) First Respondent WARREN ALLISON Second Respondent

JUDGE:	KENNY J
DATE OF ORDER:	28 NOVEMBER 2007
WHERE MADE:	MELBOURNE

BY CONSENT THE COURT DECLARES THAT:

Declarations against the First Respondent

1. The First Respondent, by statements said by the Second Respondent at a meeting with Aaron Leibovich of Panasales Clearance Centre Pty Ltd (Panasales) on 21 June 2006:

a) made it known to Panasales that TEAC Australia Pty Ltd (TEAC) would not supply TEAC electronic goods to Panasales unless Panasales agreed not to advertise for sale TEAC electronic goods at a retail price less than a price specified by TEAC, namely TEAC’s “go price” and, thereby, the First Respondent engaged in the practice of resale price maintenance in contravention of section 48 of the Trade Practices Act 1974 (the Act) by engaging in an act referred to in sections 96(3)(a) and 96(7)(a) of the Act;

b) induced Panasales not to advertise for sale electronic goods to be supplied by TEAC at a retail price less than a price specified by TEAC, namely TEAC’s “go price” and, thereby, the First Respondent engaged in the practice of resale price maintenance in contravention of section 48 of the Act by engaging in an act referred to in sections 96(3)(b) and 96(7)(a) of the Act;

c) entered into and offered to enter into an agreement with Panasales containing a term that Panasales will not advertise for sale TEAC electronic goods at a retail price less than a price specified by TEAC, namely TEAC’s “go price” and, thereby, the First Respondent engaged in the practice of resale price maintenance in contravention of section 48 of the Act by engaging in an act referred to in sections 96(3)(c) and 96(7)(a) of the Act.

2. The First Respondent by statements made by the Second Respondent in an email sent to Panasales on 30 June 2006 (the 30 June 2006 Email) together with the statements said by the Second Respondent at a meeting with Aaron Leibovich on 21 June 2006:

a) made it known to Panasales that TEAC would not supply TEAC electronic goods to Panasales unless Panasales agreed not to advertise for sale TEAC electronic goods at a retail price less than a price specified by TEAC, namely TEAC’s “go pricing” and, thereby, the First Respondent engaged in the practice of resale price maintenance in contravention of section 48 of the Act by engaging in an act referred to in sections 96(3)(a) and 96(7)(a) of the Act;

b) induced Panasales not to advertise for sale electronic goods to be supplied by TEAC at a retail price less than a price specified by TEAC, namely TEAC’s “go pricing” and, thereby, the First Respondent engaged in the practice of resale price maintenance in contravention of section 48 of the Act by engaging in an act referred to in sections 96(3)(b) and 96(7)(a) of the Act; and

c) entered into and offered to enter into an agreement with Panasales containing a term that Panasales would not advertise for sale TEAC electronic goods at a retail price less than a price specified by TEAC, namely TEAC’s “go pricing” and, thereby, the First Respondent engaged in the practice of resale price maintenance in contravention of section 48 of the Act by engaging in an act referred to in sections 96(3)(c) and 96(7)(a) of the Act.

3. The First Respondent, by statements made by the Second Respondent in price lists sent by email to Panasales on 30 June 2006 (the First July Price List) and 4 July 2006 (the Final July Price List) together with the statements made by the Second Respondent in the 30 June 2006 Email:

a) made it known to Panasales that TEAC would not supply TEAC electronic goods to Panasales unless Panasales agreed not to advertise for sale TEAC electronic goods at the retail prices less than a price specified by TEAC, namely the “Go Pricing” column contained in the First July Price List and the Final July Price List and, thereby, the First Respondent engaged in the practice of resale price maintenance in contravention of section 48 of the Act by engaging in an act referred to in sections 96(3)(a) and 96(7)(a) of the Act;

b) induced Panasales not to advertise for sale electronic goods to be supplied by TEAC at a retail price less than a price specified by TEAC, namely TEAC’s “Go Pricing” column contained in the First July Price List and the Final July Price List and, thereby, the First Respondent engaged in the practice of resale price maintenance in contravention of section 48 of the Act by engaging in an act referred to in sections 96(3)(b) and 96(7)(a) of the Act;

c) entered into and offered to enter into an agreement with Panasales containing a term that Panasales would not advertise for sale TEAC electronic goods at a retail price less than a price specified by TEAC, namely TEAC’s “Go Pricing” column contained in the First July Price List and the Final July Price List and, thereby, the First Respondent engaged in the practice of resale price maintenance in contravention of section 48 of the Act by engaging in an act referred to in sections 96(3)(c) and 96(7)(a) of the Act; and

d) used, in relation to TEAC electronic goods that may have been supplied by TEAC to Panasales, a statement of prices that was likely to be understood by Leibovich of Panasales as the price below which TEAC electronic goods were not to be advertised for sale by Panasales, namely the prices in TEAC’s “Go Pricing” column contained in the First July Price List and the Final July Price List and, thereby, the First Respondent engaged in the practice of resale price maintenance in contravention of section 48 of the Act by engaging in an act referred to in sections 96(3)(f) and 96(7) of the Act.

Declaration against the Second Respondent

4. The Second Respondent was directly knowingly concerned in, and party to, the First Respondent’s conduct of engaging in the practice of resale price maintenance referred to in orders 1, 2 and 3 above in contravention of section 48 of the Act by:

a) statements made at a meeting with Aaron Leibovich on 21 June 2006 referred to in order 1 above;

b) statements made in the 30 June 2006 Email sent to Panasales referred to in order 2;

c) the “Go Pricing” column in the First July Price List and the Final July Price List emailed to Panasales referred to in order 3;

and thereby the Second Respondent engaged in conduct of the kind referred to in sections 76(1)(e) and 80(1)(e) of the Act.

BY CONSENT THE COURT ORDERS THAT:

Injunctions

5. The First Respondent be restrained, whether by itself, its servants, agents or otherwise howsoever, for a period of three years from the date of this order from making statements to a person (the Retailer) that may or does retail electronic goods supplied by the First Respondent or...