Australian Competition & Consumer Commission v Australian Abalone Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 26 November 2007
• Neutral Citation: [2007] FCA 1834
• Date: 26 November 2007

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834

TRADE PRACTICES — restrictive trade practices — alleged contraventions of ss 45(2)(a)(i) and (ii) and 45(2)(b)(i) and (ii) of the Trade Practices Act 1974 (Cth) and the Victorian Competition Code — respondents connected with supply of unshucked abalone — price-fixing — exclusionary provision — respondents admitted alleged contraventions

TRADE PRACTICES — pecuniary penalties — agreement reached on penalties to be imposed — factors relevant when fixing penalty — principles governing agreed penalties — parity principle

Trade Practices Act 1974 (Cth) ss 4D, 45, 45(2)(a)(i), 45(2)(a)(ii), 45(2)(b)(i), 45(2)(b)(ii), 45A, 45A(1), 45B, 75B, 76

Victorian Competition Code ss 45(2)(a)(i), 45(2)(a)(ii), 45(2)(b)(i), 45(2)(b)(ii)

Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 4) (2006) ATPR 42-101 cited

Australian Competition and Consumer Commission v Commercial and General Publications Pty Ltd (No 2) (2002) ATPR 41-905 cited

Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144 cited

Australian Competition and Consumer Commission v Ithaca Iceworks Pty Ltd (2002) ATPR 41-851 cited

Australian Competition and Consumer Commission v SIP Australia Pty Limited (2003) ATPR 41-937 cited

Australian Competition and Consumer Commission v The Vales Wine Company Pty Ltd (1996) ATPR 41-528 cited

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

Lowe v The Queen (1984) 154 CLR 606 discussed

Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993 cited

NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 cited

Postiglione v The Queen (1997) 189 CLR 295 discussed

Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live-Stock Corporation (1980) 29 ALR 333 cited

Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission (2003) 127 FCR 170 cited

Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 cited

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

Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529 distinguished

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v AUSTRALIAN ABALONE PTY LTD (ACN 109 349 804), BOB'S MARINE PTY LTD (ACN 007 198 807), RONDA PTY LTD (ACN 056 290 432), LECKFORD PTY LTD (ACN 007 262 848), PJ & H JOHNSTON PTY LTD (ACN 006 835 070), A & A REYNOLDS PTY LTD (ACN 006 889 470), MI LEE MARINE HOLDINGS PTY LTD (ACN 002 611 832), DENNIS WARN, DAVID HUNT, ROBERT PEIME, PETER JOHNSTON, DAVID BRAMLEY, ALLAN REYNOLDS, NATALIE BILBOROUGH, PETER WRIGHT, PETER MORGAN, COLBRASH INVESTMENTS PTY LTD (ACN 101 922 285), CHRIS BILBOROUGH AND QO NOMINEE PTY LTD (ACN 109 785 006)

VID 1418 OF 2005

WEINBERG J

26 NOVEMBER 2007

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1418 OF 2005

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant

AND:

AUSTRALIAN ABALONE PTY LTD (ACN 109 349 804) First Respondent BOB'S MARINE PTY LTD (ACN 007 198 807) Second Respondent RONDA PTY LTD (ACN 056 290 432) Third Respondent LECKFORD PTY LTD (ACN 007 262 848) Fourth Respondent PJ & H JOHNSTON PTY LTD (ACN 006 835 070) Fifth Respondent A & A REYNOLDS PTY LTD (ACN 006 889 470) Sixth Respondent MI LEE MARINE HOLDINGS PTY LTD (ACN 002 611 832) Seventh Respondent DENNIS WARN Eighth Respondent DAVID HUNT Ninth Respondent ROBERT PEIME Tenth Respondent PETER JOHNSTON Eleventh Respondent DAVID BRAMLEY Twelfth Respondent ALLAN REYNOLDS Thirteenth Respondent NATALIE BILBOROUGH Fourteenth Respondent PETER WRIGHT Fifteenth Respondent PETER MORGAN Sixteenth Respondent COLBRASH INVESTMENTS PTY LTD (ACN 101 922 285) Seventeenth Respondent CHRIS BILBOROUGH Eighteenth Respondent QO NOMINEE PTY LTD (ACN 109 785 006) Nineteenth Respondent

JUDGE:	WEINBERG J
DATE OF ORDER:	26 NOVEMBER 2007
WHERE MADE:	MELBOURNE

THE COURT DECLARES THAT:

1. During 2004, each of the First, Second, Fourth to Seventh, Seventeenth and Nineteenth Respondents contravened s 45(2)(a)(i) and (ii) of the Trade Practices Act 1974 (Cth) (“the TPA”) and the Eighth and Ninth Respondents contravened s 45(2)(a)(i) and (ii) of the Victorian Competition Code (“the Code”), by making an arrangement that contained provisions which:

(a) had the purpose of restricting the supply of unshucked abalone taken from the central abalone zone in Victoria by the Second to Ninth Respondents to holders of a Victorian Fish Receivers’ (Abalone) Licence and other purchasers of unshucked abalone taken from the central abalone zone (“Abalone Purchasers”) being Abalone Purchasers located in the mainland of South-Eastern Australia not nominated by the First Respondent and thereby constituted exclusionary provisions within the meaning of s 4D of the TPA and the Code; and

(b) had the purpose, effect and likely effect of controlling the price paid by Abalone Purchasers for the supply by the Second to Ninth Respondents of unshucked abalone taken from the central abalone zone in Victoria.

2. During the period from about July 2004 to about March 2005, each of the First, Second and Fourth to Seventh Respondents contravened s 45(2)(b)(i) and (ii) of the TPA and the Eighth and Ninth Respondents contravened s 45(2)(b)(i) and (ii) of the Code, by giving effect to provisions of an arrangement which:

(a) had the purpose of restricting the supply of unshucked abalone taken from the central abalone zone in Victoria by the Second to Ninth Respondents to Abalone Purchasers not nominated by the First Respondent and thereby constituted an exclusionary provision or provisions within the meaning of s 4D of the TPA and the Code; and

(b) had the purpose, effect and likely effect of controlling the price paid by Abalone Purchasers for the supply by the Second to Ninth Respondents of unshucked abalone taken from the central abalone zone in Victoria.

3. The Tenth Respondent, as a director of the First, Second and Nineteenth Respondents, was directly knowingly concerned in, and party to, the contraventions by:

(a) each of the First, Second, Fourth to Seventh, Seventeenth and Nineteenth Respondents of s 45(2)(a)(i) and (ii) of the TPA;

(b) each of the First, Second and Fourth to Seventh Respondents of s 45(2)(b)(i) and (ii) of the TPA; and

(c) each of the Eighth and Ninth Respondents of s 45(2)(a)(i) and (ii) and s 45(2)(b)(i) and (ii) of the Code,

referred to in paragraphs 1 and 2 of this order, by, on behalf of the First, Second and Nineteenth Respondents:

(i) making the arrangement referred to in paragraph 1 of this order; and

(ii) giving effect to the provisions of the arrangement referred to in paragraph 2 of this order.

4. The Eleventh Respondent, as a director of the First, Fourth, Fifth and Nineteenth Respondents, was directly knowingly concerned in, and party to, the contraventions by:

(a) each of the First, Second, Fourth to Seventh, Seventeenth and Nineteenth Respondents of s 45(2)(a)(i) and (ii) of the TPA;

(b) each of the First, Second and Fourth to Seventh Respondents of s 45(2)(b)(i) and (ii) of the TPA; and

(c) each of the Eighth and Ninth Respondents of s 45(2)(a)(i) and (ii) and s 45(2)(b)(i) and (ii) of the Code,

referred to in paragraphs 1 and 2 of this order, by, on behalf of the First, Fourth, Fifth and Nineteenth Respondents:

(i) making the arrangement referred to in paragraph 1 of this order; and

(ii) giving effect to the provisions of the arrangement referred to in paragraph 2 of this order.

5. The Thirteenth Respondent, as a director of the Sixth Respondent, was directly knowingly concerned in, and party to, the contraventions by each of the First, Second, Fourth to Seventh, Seventeenth and Nineteenth Respondents of s 45(2)(a)(i) and (ii) and s 45(2)(b)(i) and (ii) of the TPA and the contraventions by:

(a) each of the First, Second, Fourth to Seventh, Seventeenth and Nineteenth Respondents of s 45(2)(a)(i) and (ii) of the TPA;

(b) each of the First, Second and Fourth to Seventh Respondents of s 45(2)(b)(i) and (ii) of the TPA; and

(c) each of the Eighth and Ninth Respondents of s 45(2)(a)(i) and (ii) and s 45(2)(b)(i) and (ii) of the Code,

referred to in paragraphs 1 and 2 of this order, by, on behalf of the Sixth Respondent:

(i) making the arrangement referred to in paragraph 1 of this order; and

(ii) giving effect to the provisions of the arrangement referred to in paragraph 2 of this order.

6. The Fourteenth Respondent, as a director of the Seventh and Seventeenth Respondents, was directly knowingly concerned in, and party to, the contraventions by:

(a) each of the First, Second, Fourth to Seventh, Seventeenth and Nineteenth Respondents of s 45(2)(a)(i) and (ii) of the TPA;

(b) each of the First, Second and Fourth to Seventh Respondents of s 45(2)(b)(i) and (ii) of the TPA; and

(c) each of the Eighth and Ninth Respondents of s 45(2)(a)(i) and (ii) and s 45(2)(b)(i) and (ii) of the Code,

referred to in paragraphs 1 and 2 of this order, by, on behalf of the Seventh and Seventeenth Respondents:

(i) making the arrangement referred to in paragraph 1 of this order; and

(ii) giving effect to the provisions of the arrangement referred to in paragraph 2 of this order.

7. The Sixteenth Respondent, as a director of the First Respondent, was directly knowingly concerned in, and party to, the contraventions by:

(a) each of the First, Second, Fourth to Seventh, Seventeenth and Nineteenth Respondents of s 45(2)(a)(i) and (ii) of the TPA;

(b) each of the First, Second and Fourth to Seventh Respondents of s 45(2)(b)(i) and (ii) of the TPA; and

(c) each of the Eighth and...