Trade Practices Commission v Orlane Australia Pty Ltd [1984] FCA 3

CATCHWORDS

Trade Practices - resale price maintenance - 'loss leader'

defence - definition of 'cost' in s.98(2) - penalty

Trade Practices Act 1974 (Cth), ss.4(1), 48, 76, 77, 96(3), 96(3) (d), 98(1), 98(2)

Resale Prices Act 1976 (U.K.), s.13(2)

Acts Interpretation Act 1901 (Cth), s.23(b)

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TRADE PRACTICES COMMISSION v ORLANE AUSTRALIA PTY. LIMITED

T No. G3 of 1982

Smithers, Morling and Beaumont JJ 3 February 1984

Sydney

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY No. TG3 of 1982

GENERAL DIVISION

BETWEEN 3 TRADE PRACTICES COMMISSION Appellant AND 3 ORLANE AUSTRALIA PTY. LIMITED Respondent ORDER

JUDGES MAKING ORDER Smithers, Morling and Beaumont JJ.

DATE OF ORDER : 3 February 1984

WHERE MADE Sydney

THE COURT ORDERS AND DECLARES THAT:

1. The appeal be allowed.

2. Declarations 4 and 5 made by Northrop J. on 14 July

1983 be set aside.

3. It 1s declared that by the conduct referred to in para. 3 of the orders made by Northrop J. on 14 July 1983 the respondent engaged in the practice of resale price maintenance contrary to s.48 of the

Trade Practices Act 1974.

10.

In respect of the contravention of the Trade

Practices Act referred to in para. 3 hereof the respondent do pay to the Commonwealth a pecuniary

penalty in the sum of $3,500.

Paragraph 7 of the orders made by Northrop J. 1s

varied so as to delete therefrom the reference to

$15,000 and to substitute therefor the sum of

$18,500. The order for costs made by Northrop J. in para. 8 of the said orders be set aside and in lieu thereof

it be ordered that the respondent pay the

appellant's costs of the proceedings.

Otherwise the declarations and orders made by

Northrop J. are affirmed.

The cross-appeal is dismissed.

The respondent is to pay the appellant's costs of

the appeal and cross-appeal.

The respondent be granted a certificate under the

Federal Proceedings (Costs) Act Act 1981.