Trade Practices Commission v Orlane Australia Pty Ltd [1983] FCA 144

CATCHWORDS

Trade Practices - resale price maintenance - onus of proof - 'loss leader' defence ~ evidentiary onus - meaning of 'cost' and 'other goods' in s.98(2) Trade Practices Act 1974 - nature of 'purpose' in s.98(2) - pecuniary penalty - factors to be taken inco account - injunction.

Resale Prices Act 1964 (U.K.) ss.2, 3 Trade Practices Act 1974 (Cth.) ss.4(2), 4c, 4F, 48, 76, 77, 80, 96, 98(1), 98(2), 100(1)

TRADE PRACTICES COMMISSION v. ORLANE AUSTRALTA PTY. LTD.

T. No. G3 of 1982

Melbourne

14 Juiy 1983.

wr

IN THE FEDERAL COURT OF AUSTRALIA

) ) TASHANTA DISTRICT REGISTRY ) T. No. G3 of 1982 ) )

GENERAL DIVISION

BETWEEN: TRADE PRACTICES COMMISSION Applicant and ORLANE AUSTRALIA PTY. LTD. Respondent ORDER CORAM: Northrop J. DATE: 14 July 1983 WHERE: Melbourne

THE COURT ORDERS AND DECLARES THAT:

1. In June 1980 the respondent induced Richard Leslie Hutchison not to sell, at prices less than prices specified by the respondent, cosmetic products supplied

to him by the respondent.

& By the conduct referred to in paragraph 1, the respondent engaged in the practice of resale price maintenance contrary to section 48 of the Trade

Practices Act 1974 ("the Act").

In November 1980 the respondent withheld the supply of

cosmetic products to Richard Leslie Hutchison for the

reason that he had sold or was likely to sell cosmetic products supplied to him by the respondent at prices

less than prices specified by the respondent as the

prices below which the products were not to be sold.

By the conduct referred to in paragraph 3, the respondent would have engaged in the practice of resale price maintenance contrary to section 48 of the Act were

it not for the defence in sub-section 98(2) thereof.

Paragraph 96(3)(d) of the Act did not apply in relation to the conduct referred to in paragraph 3 because Richard Leslie Hutchison was a person who, within the preceding year, had sold cosmetic products obtained from