Ae ete ee ee ee eee ee Pt eee eerie eke owas uate CATCHWORDS Trade Practices - Conduct in restraint of trade - Settlement —- Consent orders - Effect of change in legislation. Trade Practices Act 1974, ss.45, 76, 77 and 80. Act Interpretation Act 1901, s.8. TRADE PRACTICES COMMISSION v. MILREIS PTY. LTD. & ORS. Coram : Franki J. 8 June 1973 Sydney. u me ee te nme me ee ee IN THR PUDERATL COUIT_OF_ ANAM ATTA ) NE" SOUTH MATES DIMICT RVGISTRY No.G306 of 1975 GENERAT, DIVISION ) BETWaPN: THE TRADT PRACTICR™ CORMTSSIO Plaintt?f AND: MITRRIS PTY, LIMITED & ORS. Lefenionre REASONS FOX .TUDGMENT : FRANKI J. DFT.IVPRPD: Sth June, 1978. In February 1978 I ordere4 thet Thomson Publiceticns (Australia) Ptv. Ltd. ("Thomcon") be added on terme thet at mav be heard and call evidence as to whether the ordeers end undertakinres sought in pursuance of proroced terms of settlement betveen the plaintiff and the 16th, 17th, 18th, 19th ene 10/+nh defendents can or ought to be mate end accented, Thomann 7llered the terms of settlement were very cetrimental te the mMeinesr it conducte? in sublichine "Thomsonts Licuor Guide", publication ra) which Listed cugreestee reteil prices for a very entensive ronze of alcoholic erinks. The terns of settlement which haA been reache u 5. c+ ir the 16th, 17th, 18th 19th an@ 19th defendants ané which tre Court was ecked to inmmlenment by ~akine the eprroprisc: orerrec and accenti 7 the aporovricte und+rtekings vere, co far et is relevent, in similer terms, The terms of cettlencnt in tc cuce of th: 14ta eefcnaont were: ee Re te ee ne eS eR i a a ie nL ee Ree "The 16th Defendant, Cacea (io.5) Tty. Linites, TIT oR aatly. O24 rors to sive on undertaking to' this Honourable Court in the foll»m ine tors: tUadee (1.5) Iti. sil ited ... hereby undertokes to the Court that it will promrtty - (2) (b) notify the A.1.4. in vritine thot the 16th De"endan ck He ct ie) if ? '3 "1 $2 J c+ cee] i>]"L v yD rya i ~ anv further such ctreulers, price lirtc or puiees to the 1€th Dofendeni, its servants he ~uhlishers of Thomsonts Suide in writine thet the ifth Defend nt, its cervants and erents, "*o not with *o 1 *urthe~ tissues af Thocconts Liquor Tiide ont resuese the rublishers oF Q & t= & 0] + ro) ct lo" DnN + x i] re) th QObhrs ct fue ab fy ot) fp)" )+" AND HEREBY FURTHER CONTENTS to the mekine of an orfer by this Honorable Court in the following terme : THIS COURT DOTH RY CONSENT ORDER thet the 1&th Defencant, by iteelt, ite cervents and arents, be restrained from ~ enna mes ee ee i eR vv pte nena meet te ee eae tan tent den licensed hotel prenices or being 2a rerty to the formilstion, anrrovel or recom cndation of such orices; Bd (b) cireuletine nrices for Lienor as being the Qn prices at which linuor t¢ recommended to be sold to the nublic fron licensed hotel premises or being, a party to the cirenlation of such Jists or puides received directly from e sunniicr of licuor containing crices om recomended nrices in resnect only of linusr sym nlie? wv that supplier), or acting on such price licts or puides; (@) engaging in cenneuct of a like ind to, or conenct party to sich conduct. PROVID™D THAT in the event thet the —_ 6th Defendant reecives an unsolicited nrice list or miide felling vithin narerv-anh (c) above, the receint of such price list or puide sholt not be a breach of this intimetion rrovided thet the 1#*h Defencant - (1) forthwith notifies the Trede Practices Commission in »riting of the receint n¢ the price list or euide: and (11) takes all reasonable stens to nrevent eee en ee ote ene a ee eS the receipt of further price Lists or guides from the same source. AND THI? COURT DOTH BY CONSTNY FURTHFR ORDER that the 145th Defendant pay to the Plaintiff the Plaintiff's costs of these proceedings as assessed end agreed in the sun o* $229,90,", The procecdings, which vere comrenced on 5 Decenber 1975, were brousht by the Trade Practices Tormission as plaintit? ia ne) under the nrovisions of ss.75, 77 and 9S) of the "rede Frreeticec het 1974 ("the Act") and a contrevention of 5.45 of the 'et was a alleged, The Trade Practices Act vas amended by Act No.71 of 1977 ("the cnendin 1977. The 'et includine the repeal of s./!5 anA the substitution of ancther Act") which ceme into operation on 1 July mending Act made siznificant amenements to the ist) section, The general nature of the wroccedinas before me war set out in ay reasons for judenent delivered on 16 February 1975 - vhen I ordcved thet Thomson be eddes as a varty, (1978)1% 4.7..2.17. I heve now to consider whether or not, by the consent ay? et the recuest of the nartiec to te eetticnornts, I ¢ghontd wir the orders sourht and acecnt 16th, 17th, 18¢1, 19¢) ond 19th Aefendents, After I had ruics on the edmiccihtlity of certein evitence, the matter rroceeredA cubstentis?ly uron the bosic that the evidence hav been given to sunsort the omlicc tion of Lhovv on to be edaot as a narty shinnl? be dscmedA to hove heen piven in tis current vrocsedings. come further evieonce war piven in perticular pr tir, sine, "anocine lirretar af Themerr, ana he was cross-evanined in some detril, Counsel for Thomson sub nitted that the Court shonld not make the orders soucht or eccent the undertakirgs o%fercad on the following rrounds : 4. There is now no power to erent injunctive relief in respect of sny breach of eft af the Act taxing rlace before that section was repealer as from 1 July 1977 end a different section subetituted hecause - (a) there was no relevant rirht rcerued within 8,9(c) of the Acts Intarnrotatinn Ant 1091 and therefore there were no praceedin which could be vroserved by 8.8(e) of the Acts Internretotion Act, ar (b) section 8(c) and (e) af the Aste Interpretetinn — ——— Act did not anniv because a contrery intertion was to be fovnd in the amending Act, 2. Section 2) 4oes not parmit the Court to prant en injunction in resnect of eny acts no lenrer vroscribed by the lav, 3. The pleadines did not oallere 2 breach of ¢.45 ac it is in the Act as ameneed, A, The Court should not srean* an indunetion even by consent untess the vartoue relevant matters referred to in s.99 are established either bv evidence or admissions. Counsel for the "laintiff Aismited these contentions end submitted that there was no reccon why the Court charld not -6- give effect to the settlements of the parties who had signed the terms of settlement. Section 8 of the Acts Interpretation Act so far as is relevant, provides : "8, Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not - (c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or (e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid; and any such investigation legal proceeding or remedy may be instituted continued or enforced and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed." The writ and statement of claim were filed on 5 December 1975 so that at the date of the repeal of s.45, if the plaintiff could establish its case, including the relevant conduct of the defendants, subject to the discretion of the Court, it could obtain a penalty on behalf of the Commonwealth under ss. 76 and 77, and a suitable injunction under s. 80 and costs. The service of the writ and statement of claim on the defendants was an assertion of that right. Section 8(e) ensures that legal proceedings may still be continued in respect of any right which is accrued and in respect of any corresponding liability. I am of the opinion that the plaintiff had such a right before the introduction of the amending Act and that that right has been preserved by the provisions of s.8({c) of the Acts Interpretation Act. v —_— wees In my nvinion this is in escord with Timector of Puplics "Vanks v. Ho Pa Sane [12st] A.C, 991, Frere Tonka Treneeiee Co, 144, v. Ranesincho frasr] A.C, S41 et SE9, Mekal Pe, DtA. vy RBaulkhom Hills Shire Connect) fi777 | 2NLS.7, LR, 5A at "79 a pp. FA-59, Robertson v. City of Nonevading 1973] V.R. 919 at po. 925-926 and 'elton v, baffely [1775] 20.8.4. LR. 565 at mn. 57£-577. I pass now to consider whether there is anv contrerv intention in the 2mending Act which wold prevent the annlicetion of s. 8 of the *cts Intermretation Aet in whole or in nart. Counsel for Thomson referred to 2 manber of sections of the amending Act in summort of his ermment, I do not nrovose to set out those sections in full but I will refer briefly to then. Section 25 of the amending Act renealed s.45 of the Act and revlaced it with a new s a QO faa fe) ne Section 9(2)(%) and (4) of the emondine fet made certain provisions to deal with the position vhich ernse hecauce *he amending 'ct vrovided that the Trade fPractices Commission previously existing should cease to exist ane made provision for the establishment of a new Trade practices Connission Section 8(%) and (4) crovider : "9, (3) where, immediately before the conrencement of this section, the Towat-cion ostabliche< by the erincinal Act vas a marty to or intervener in a proceecine in a count, the "rate Trsacticz:s comets cion establiched byw the frincinel act as emonde? br chic Act shill be deomed to be cubctituted for tre firt- mentioned Comission ac a rerty to or intervener in that procecdinr. ve CG Sd (4) Bho navon of fh> Trade Practiace Cammiccion ectebliched ber the (sinc ipel Set as amanda ber thi: heb to institete any eroorcdine in the vanes at 4a: to the incritition 3° 9 provee4ine in wrinaent of contzct cnvavro? in hetorn the canisneoment at thir Act," Section 2(7) has the offect of wrhctitytine the new Trate Iractices ae faceay ommiccion far the Prone Preetices Coeniicisn 'hich eamtenced the nroccedines heforn me, In mv orinion the section vroceets wmo9%n the besis thet onfetin: nracerrine: vill continne after the amending Act came into farce ond dnes not nrovide anv indication 97 2 cantverv intention that 2.2 f the Acts Intercretatinn Act shevld not anniy, fention 2(") of the amencing Act also Aeslte en D oO He ? eellv vith rrocesenix ts in resnect of conduct enracred in before the commencement of the amending "et ant anreers to rely an the oreration of s.8 of the Acts Intcrsretotion Act, Section 40 of the amentine 'ct emonde 5,790 af the fct but vroviecs thot the amendment chall anniy only in relotion to contracts mace after the anen?ine Act commenced. Thir Anec no more then ensure thet the smendine Act hed no retrognective operation vith rerard to 3.70 of the 'et, Section 47(2) of the amending set eravides that anentment: made by s,47(1) to the vnenalties for affonces areinet Part Vv of the Act choulA omoly in reletion to any imm-osition of nenalties after the commencement of the mmencine Aet. Thic presunnoses that lisbilittes incurrece in resnect af a brezch . of the fect will not be terninsated by the introduction af the amending Act. In my oninion therefore thir cecstion aesumes the ee ee eee ceene a wane een, - 9 - operation of £.8 and indicates not 9 contrcery intention, but rather an intention that s.8& should ernply. Sections 52(2) and 32 of the amending Act. Section 59(°) deals with contrects made before 1 Fobrnery 1975 and ¢.52(2) provides, inter alla, that the Court may in certain circum stances vary such @ contrect which was unenforceble in whole or in part prior to the commencement «of the amendine Act bv reason of 5.45 of the 'at. Section 8? deale with severebilitv, These sections in my oninion are not inconcistent vith the operetion of s.8 of the Acts Intevmretetion fct ene they do not indicate anv intention thet thet section or anv nart of it shold not apoly. Section 54(2) of the amending Act deals with nroblems in relation to authorizations arising from the ebolition of the previous Trade Prectices Conaission and the establishment of a new Trade Practices Commission, This cection deals vith matters of a different nature to those involved in the oesttions I am considering and does not indicate eny intention that s.8 should net apply, at least co far as is relevant in the case before me. iam ct y a fection 62(2) of the amending Act deals wit clearance of tergers and in effect rrovices thet e noticc, gdven under 5.94 of the Act stating thet the then oxisting Tredn Fractices Commission consieeree that a prorosed cecuisition of commetition in a merket for pnoes or cermtices, rhowtd have tie effect of excluding tic operation as amended, to or in relation ty thot acauisition, The rersett . uu Tete RAR he te ce ee me ee I see nothing in the facts to :how that Thomcontsz cubnissions are agsinted bv Lhe decision: in Go, "euhblcin sn? Bra, Tne, vv. Cantinente. T dane Vtee, 74a, (4907) an " Lette 15% or Favhenfobrilien Rarer Af, v. Rares Pham Cty, 124, (1965) 117 G.LLR. S299, Tem satisfied thet the nisintifft> ection survive? tre introdnetion of the omen@ine Jct an? -9 I resect the *iret enbmiscesinn of Thomson, Thic view te in sccord with the tudement of "mithers J, in Trodectos: Pty, Lt', v. TANT. (Manocenent) ty, Ltd, (1°72) = ne ee 17 A.L.R. 257 at pn. 2729-27", Tn that ceee His Honour treated proceedinss which hid been commenced under ¢,.99 of the Act fir an tndjunction before tho amendine Act came into farce es continuing after that date and eave leave to the niscintifft to amend its statenent of clein, His Honan rracceded on the basis thet the relevant conenuct vas thet thich was rroscribe? by the Act acs emenced at the dete when the Court is concidertnr the mekine of an injunction, IT consider thet the eeennd subrission of Thomson thet ¢,29 Goes not vernmit the Court to erent on intunction in reenect of anv acts no lonrer proscribed by the Lav te correct end is in accordence with Anrlication Aes Can TAL v, Pals Verite: Tre, {1974 ] 1 Ch, 481 and tradestoc: Pty, Ttd, vy. UNE, (Mancrement) a er a. tert: Pty, Itd., summa, However I an not consider this is decisive of the questions which I have to determine, v ee ee ae Me IO ea a NR NEE ante ete a oi ne noe na ante ti ee The third submission of Thomson deals with the vlesdings, Phe proceedings were commencee by writ and statement of claim filed in the Industriel Court on & vacember 1975, Under the provisions of rerulation 79°L of the Concilietion and Arbitrotion Rerulstions nroceedines under s.77 of the 'ot, wer so far as was vracticable, to be instituted and conducted in like manner as an action by irit of summons is tnstituted end conducted in the High Court and under rerulstion 78P e clsin for an injunction under s.80 might he included es a clain, If no necuniary venalty wes sourht -n alternetive proces by way of order to sho. cause was provided undcr regsuletion 78N. Thomson's fourth subnission vas that even where en injunction was sought by consent, the Court had to be satistic = i) ie} f4s >) of the various relevant matters either bv evidence or adr: The terms of settlement which have heen entered into are not qualified in any way, for exarmle thet they are not upon the basis of being without admission of liabilit:-. I consiecr the all necess-ry admissions are to be innlied from these terms sf settlement. I censider thorefore that nothin~ stendc in the way cf the Court raxing the orders soneht ena accentine the undeortatt weiate on? the cvertion erises vhat exeninetion should the Court rake of o reenest to make oreerc ane acecpt unceertesines 4 concent. it secms cleor that the Court has the n..er to refuce to male an injunction or refuse ta accent nndurtalrings wheres fe) "9 t nes Wes the injunction sought or the unr*ertciirnes proffered are incufficiontiy precice, see Vitlsan § iteocth ite, v Tenrecr & Indcontont Mevenaners Ta f47ee8] AL. 197. Aeoart from thir asvect T have not bocn directed t9, nor have T fount, eny very help?ut euthoritiss unon the ~uestion of what orincinios should cuice no, T kave not overloo%ed FLY, Thilline & Sone Lt. ve Cisne [1079] 1 Ch.2°2, Noel v. Rocker [1971] 1 .L.2. 255 and Roberts v, Girnelon4 Aerieultine? and Tarth Movine Cantroctines Pty, te, [1956] settlement it shoul4 not reaice unnececceryv difficulties about nleadines end, for evannic, recuire an arendment provided thet the Court is satisfies that zay consent orders it nakes, or consent mndertakines it accerts, are not in F rri are within jurisdiction, Section 39, both beforo and after ancndament, allowed the Court to zrent an injunction restraining a nerson from enrarint in onandnuct which canetitutes or vould constitute 2» contravention of a sroviscion of Fert TV. The anendine Act introducted provisions which, inter alin, pave the Court nower to grent an iniunction restraining 2 rerson from enragine fn coneuct of a verticular kind, being for examle concuct in contre vention of 2. rrovision of Tart Iv, if it is satisfied that the person Zz ensered in conduct of that kind whether or not it enneore to the Court that the person intends to ensare again, or to continue to encage in conéuct of thet kind, The vleedines allored that the cornoration defendants and each of them and other retailers of linunr from Jicenser hotel promises in New "outh Waler had been and remeineA narties to an errangement whereby thev reconmenied to each other fron time to time prices at which licunr may be sold to the nublic from licensed hotel premices parties to the said arranrement, anerated by or on behsif of the it wae also alleged that it was part of the arrengerent, inter elie, thet the vorices so recommendec be versons acting afreirs of the Australian Hotels so formulated or eannroved be circulated to each of formulated or annroved from tine to time by in an executive canscity in connection with the ~Ssociation, that such prices he parties to the said arrengement as beine prices at which liquor was recommendec by the Australien Hotels issocia the public from licensed hotel prenizes that this was in restraint of trade or comme It was elso further or elternetively al was part of the said arranrement thet Liguor ? m& from licensed hotel previsces operote parties to the caic arrenrenent 'nul? he « recomncnicd, or-at those prices to the contrary, were to be texen into eccount ar i material to the arranconent in ceterninine the prices would be sol? to the nublic from Jicerted ho as tion to be Poe. in New South "eles opoernted by them or on their behal?, At ver ellered Abate each of the cllecre4 arroncromonts wore in rertreint af trese or cnqmerce, sold to and . Sinatler alle-ation= «ere mete by ~lerdine wm under stenting tneiead af cn errereenenr, acs is revelent, *hat 2 cornoretion chil ant sive cffeet 45 a provicion of an arrcncement aro umiesstentire vacther mare or arrived at be*are or often the cammencoment of the amending Act if thet rrovision hos the oirmosc, or has or is like) the effect, -f substentiellvw lecnenine camnetition, Themesn arrued thet the esrential festure me Hiet the nravicion -f the srrencencnt or cndersten?ing bead the nur rcs, or hed or war likely to have the effect, of subetintint iy Joceenine compe*ition end thet this was not allered in the nleeeinzs T do not think 4t je the function of the Court to imnere a ecttlerent hetween rerties leeallv ronrecentod ¢ well able to understeon? and eveluate the eosirahility of agreeing t> a settlement, nor do I thins it the "nnction of the Court to refuse to rive effect to te-ms of cattlenent bv ~efusing ta make orfore or ta sccent oneortovines where thraso orders ar undertatines are within the Courtts furisdiction +4 make and eccent and are othervice immobierttionable, As T herve seid I consiser that I an entitles to trest the terme of settlement, not being subject to any restriction, ar cunnlvine eny necessary admissions e¢ hetveen the rarties to the settlement. An intunction gronted nurcnent to 8.89 met oirely be within snrisdiction if it »rehthite certcin sneecific acte Vv and not merely en infringement ef 2 section of the anended Act or conduct couched in the words of a ceotion of that act, provieed the acts nrohibited ere acts which may reasonebly be nart of the coneuet »roseribed in 5,89, It is anpropriate to note thet Yoven C.J. in this metter on 25 July "O77 rior to Thonenn becowine e v~arty, rrented an injunction by consent in relation to the 191st deFendent althouch thie wes done by his Hono vithout the acvantare of anv detetled arrument. The indunctions which his Honour granted were in the same form es thoce in pararravhs (a), (b) and (c) ane the nrovise to the orders sought now pursusnt to the terms of settlement. The fourth order sought, in naresranh (ad) of the terns of cettlement, nanely, that prohibiting the relevent defendant from enrsarins in conduct of 2 like kind to, or conduct with a like effect of, the conduct described in naresranhs (a), (L) or (c) or beings a party to such conduct ic, in my ocinion, too uncertain for the Court to make, to accent The underteakinzs vhich the Court is aske were not the cubject of the settlevont given effect to by Rowen C.J. in relation to the 191ct defendant, bat they are not subject to ent cbsection on the rounds of uncertrint:. whether TIT chould eccent thes o & ndertrxinrese ane, to roaue extent, vhether I should make oréer (¢) @epenids unen whot regard, if any, T should vay to the position of Thoncon, TS Certain evieence piven in relation +2 the method by whic': the prices recommented in "Thomesnt: vienor "Cuicet oe rer le a RR Ril ee Ne - 16 - were arrived at vas treated ac confidenticl and usec the eubtect of oreers under ss.17 and 59 of the Fecercl Court of ' Auctralia Act, Nothing in thie confidentiel evidence need be Aealt with in this judement becense uitinatelv, in my vier, it formed ro more then brckgroune materiel]. I conrieer that the effect on Thomson of the Court ok: ar the orders (a), (b) ane (c) end accepting the undertakines in accoreance with the tern- of cettlement is not ench 2s te cause me to refuse to make orders end accept undertekines I otherwise think approvriate even though the effect of the settlenent on Thomson's business mev be seviaus., However the terms of the settlement vrecunably 'ould still bind the parties whether or not the Court makes orders end eccents undertokires No errument was presented thet the terme of the undertakines in the settlements might he part of an evclustonery provision within s.4D ef the Act as amended, The proceedines are by the Trade Practices Commission under ss.77 end 89, and under 9.77 the recoveyy; of a venaltyv e@ to in s.76 is sought on behelf of the Commonwoaltr. o is o s % In such circumstances I consider the Court could not te expected to refuse to implement terns of rattlenents on the ground that those terms vould ingure the buciness of some third person not a party to the settloment unliecs the Court warn vury firnly of the oninion that it was appronricte so ta de. M4 do not pronose to express ony vie on vhat, if ony, cire metcnec might couse the Court te refuce to wcke anprorricte orders and accept anorovriate untertacines within jurisdiction hich verc to rive effent to terns of Tettlenent bet Tic catie ried o ~ 17 - . that in this case it is aporocriete to nee intmmetions (a), (b) and (c) as anueht tocether with the provics thereto, *9 eccent the unéertakinrs nroffcroA end to mae tho arder. for the pavnont of the a ree? caster. I certify that this and the > teen preceding pages ave a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Frank. Assoc.ate ul Pu. > J eran' Dated: D June 48