an JUDGMENT NO. snc tbl aod L., ey i, COURT OF AUSTRALIA W. S DISTRICT REGISTRY ) No. G810 of 1994 ) ) VISION -» BETWEEN: TRADE PRACTI ON Applicant AND: AMATEK MITED RADING AS ROCLA CONCRETE) Respondent RECEIVED 24 NOVEMBER 1994 - 6 DEC 1994 REASONS FOR JUDGMENT FEDERAL COURT OF AUSTRALIA PRINCIPAL LOCKHART J. REGISTRY = a — This is a proceeding instituted in the Court by the Trade Practices Commission for recovery of pecuniary penalties pursuant to s. 76 of the Trade Practices Act 1974 (the Act) and for injunctive relief. The proceedings relate to alleged contraventions by Amatek Limited, trading as Rocla Concrete (Amatek), of ss. 45(2)(a)(ii) and 45(2)(b) (ii) of the Act. The proceedings against the personal respondent, Mr Buchanan, are brought on the basis that he was directly or indirectly knowingly concerned or in or a party to the conduct which gave rise to the alleged contraventions by Amatek. The relevant principles governing the imposition of penalties for contraventions of this kind are referred to ina number of judgments in this court including Trade Practices Commission v Bata Shoe Co of Australia Pty Limited [1980] ATPR 40-162; Trade Practices Commission v Sony (Australia) Pty Limited [1990] ATPR 41-053; and Trade Practices Commission v CSR Limited [1991] ATPR 41-076. The respondents and the Commission have been engaged in discussions for some time, which have resulted in the parties reaching agreement as to the disposition of the proceedings. They realize that it is for the Court to determine whether contraventions have occurred, and in particular what the appropriate penalty should be, or what other relief should be granted. They have agreed, subject to the Court's concurrence, that Amatek has contravened the Act as alleged by the Commission and that Mr Buchanan has been involved in those contraventions within the meaning of s. 75B of the Act. They have also agreed, again subject to the Court's concurrence, what the appropriate penalties should be, and that undertaking should be accepted by the Court in lieu of injunctions. The approach to be adopted in these circumstances has been considered by judges of this Court and by the High Court of New Zealand. The principal judgment in Australia is that of Sheppard J in Trade Practices Commission v Allied Mills Industries Pty Limited (1982) 60 FLR 38, in particular at 41. In Colliers Commission v New Zealand Milk Corporation Limited, the High Court of New Zealand constituted by the Chief Justice and Gregg J, on 28 April 1994, agreed with that particular passage, which I do not find it necessary to recite, from the judgment of Sheppard J and added some observations of their own which occur at page 5 of the judgment (unreported). The same approach was adopted by Sheppard J in the later WwW case of Trade Practices Commission v Axide Pty Limited, by Burchett J in Trade Practices Commission v TNT Australia Limited (10 August 1994, unreported), by myself in Trade Practices Commission v Hymix Industries Pty Limited (25 August 1994, unreported) and by Lee J in Trade Practices Commission v Simsmetal Limited (9 November 1994, unreported). I agree with what has been said by the judges of this Court and the High Court of New Zealand in these cases. The facts of this case need not be recited, they have been sufficiently opened to me by counsel for the Commission and counsel for the respondents and they appear from the affidavit of Mr Buchanan, which has been filed. The facts as disclosed do give rise to serious contraventions of the act. They involve deliberate, repetitive and systematic conduct, made over a substantial period of time, the very nature of which denies the essential components of competition, the preservation of which is the primary function of the Act. I do not think it useful to say whether the penalties, upon which the parties have agreed, are penalties which this Court, unaided by the evidence, as it stands, would have imposed. It is possible that the Court would have imposed higher penalties, but I prefer to make no further observation about that. It seems to me that the agreement which has been reached is one which reflects, broadly and substantially, the approach which I would have taken in any event. I also take into account the fact that the respondents have been fully co-operative with the Commission in this matter and I understand that a compliance programme has been, and still is, the subject of discussion between the parties. I also take into account that in the relevant industry, which is the supply of pre-mixed concrete in the Brisbane metropolitan area and Logan areas,. that Amatek is a minor player. Amatek holds less that 5 per cent of the market share. In all the circumstances, subject to one matter to which I shall refer briefly, the appropriate orders in my opinion are those that have been the subject of agreement. The Court accepts the undertakings to the Court and mentioned in paragraphs 3 and 4 of the short minutes of order, initialled by me, dated today and placed with the papers. The Court makes orders (1), (2) and (5) as set out in those short minutes. In addition the Court orders that Amatek Limited implement a programme of compliance to the Act to be agreed between itself and the Commission, or failing such agreement, as determined by the Court. The Court grants liberty to apply, to any party in relation to the compliance programme on seven days' notice. I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart. Associate: Gh, Akh Ped Dated: 24 November 1994 Counsel for the Applicant Solicitors for the Applicant Counsel for the Respondent Solicitors for the Respondent Date of Hearing Date of Judgment rey Mr G. Brandis Australian Government Solicitor Mr Cc. Sweeney QC Clayton Utz 24 November 1994 24 November 1994