Kadkhudayan v W D & H O Wills (Aust) Ltd [2002] FCAFC 110

FEDERAL COURT OF AUSTRALIA

Kadkhudayan v W D & H O Wills (Aust) Ltd [2002] FCAFC 110

TRADE PRACTICES – resale price maintenance – ss 48, 96(3)(b) Trade Practices Act 1974 (Cth) – whether primary judge erred in concluding that respondent manufacturer's policy of refusal to offer promotional payments to retailer selling respondent's goods below a stipulated price did not amount to resale price maintenance – whether primary judge made a finding or only reached possible conclusions regarding the respondent's intention – whether primary judge erred in his assessment of loss suffered by the appellants – whether appellants in fact sustained loss in consequence of respondent's contravention of s 96(3)(b) TRADE PRACTICES – misuse of market power – s 46(1)(c) Trade Practices Act 1974 (Cth) – whether primary judge erred in concluding that respondent did not take advantage of its power in the market in refusing supply to appellants COSTS – cross-appeal against primary judge's decision that there be no order for costs against the appellants at first instance – application for leave to cross-appeal made out of time – whether leave to cross-appeal should be granted – whether primary judge took into account irrelevant considerations in exercise of discretion to make no order as to costs PRACTICE AND PROCEDURE – difficulties facing the Court where appellant unrepresented – Court formulated possible grounds of appeal for appellant to provide definition to matters that were of concern to the Court

Trade Practices Act 1974 (Cth) s 46(1)(c), 48, 82, 96, 96(3)(b), 96(3)(d), 98(2) Federal Court Rules Order 52 r 22 Neil v Nott (1994) 121 ALR 148 considered Brehoi v Minister for Immigration & Multicultural Affairs [2001] FCA 931 referred to Oshlack v Richmond River Council (1998) 193 CLR 72 applied HASSAN KADKHUDAYAN AND KATAYOUN KADKHUDAYAN v W D & H O WILLS (AUST) LTD S 81 OF 2001 NORTH, GOLDBERG & HELY JJ 7 MAY 2002 MELBOURNE (HEARD IN ADELAIDE)