Australian Competition & Consumer Commission v Foamlite (Australia) Pty Ltd & Ors [1997] FCA 1543

FEDERAL COURT OF AUSTRALIA TRADE PRACTICES - price fixing - contraventions admitted and penalty jointly proposed to court by contraveners and Australian Competition and Consumer Commission - Court's role - factors relevant to assessing appropriate penalty

Trade Practices Act 1974 (Cth) ss 45(2)(a), 45(2)(b)

Commerce Commission v New Zealand Milk Corporation Limited [1994] 2 NZLR 730 referred to NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 141 ALR 640 referred to

Australian Competition and Consumer Commission

v Foamlite (Australia) Pty Ltd, Vita Pacific Limited, Peter Charles Robert Dell, Phillip Lait James & Gerard Walsh

VG 705 of 1997

finkelstein j

melbourne

12 december 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 705 of 1997

BETWEEN: Australian Competition and Consumer Commission

Applicant

AND: Foamlite (Australia) Pty Ltd

Vita Pacific Limited

Peter Charles Robert Dell

Phillip Lait

James Gerard Walsh

Respondents

JUDGE: FINKELSTEIN J

DATE OF ORDER: 12 DECEMBER 1997

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The first respondent pay to the Commonwealth a pecuniary penalty in the sum of one million two hundred thousand dollars ($1,2000,000) in respect of the contraventions of ss 45(2)(a)(ii), 45(2)(b)(i) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth). 2. The second respondent pay to the Commonwealth a pecuniary penalty in the sum of six hundred thousand dollars ($600,000) in respect of the contraventions of ss 45(2)(a)(ii), 45(2)(b)(i) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth). 3. The third respondent pay to the Commonwealth a pecuniary penalty in the sum of one hundred thousand dollars ($100,000) in respect of the conduct by which the third respondent has been directly or indirectly knowingly concerned in or party to the contraventions by the first and second respondents of ss 45(2)(a)(ii), 45(2)(b)(i) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth). 4. The first and second respondents are restrained for a period of three (3) years whether by its directors, servants or agents or otherwise howsoever from: (a) making or arriving at; (b) giving effect to; or (c) attempting to make, arrive or give effect to any contract, arrangement or understanding with one or more competitors, for the supply of industrial flexible polyurethane foam, carrying on business anywhere in Australia which contract, arrangement or understanding contains a provision that: (i) has the purpose, or has or is likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the prices offered or charged for the supply of industrial flexible polyurethane foam anywhere in Australia; (ii) has the purpose of preventing, restricting or limiting the supply of industrial flexible polyurethane foam to acquirers of industrial flexible polyurethane foam anywhere in Australia; (iii) has the purpose of preventing, restricting or limiting the supply of industrial flexible polyurethane foam to acquirers of industrial flexible polyurethane foam, in particular circumstances or on particular conditions anywhere in Australia. 5. Each of the third, fourth and fifth respondents are restrained for a period of three (3) years from being in any way, directly or indirectly, knowingly concerned in or a party to: (a) making or arriving at; (b) giving effect to; or (c) attempting to make, arrive or give effect to any contract, arrangement or understanding with one or more competitors, for the supply of industrial flexible polyurethane foam, carrying on business anywhere in Australia which contract, arrangement or understanding contains a provision that: (i) has the purpose, or has or is likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the prices offered or charged for the supply of industrial flexible polyurethane foam anywhere in Australia; (ii) has the purpose of preventing, restricting or limiting the supply of industrial flexible polyurethane foam to acquirers of industrial flexible polyurethane foam anywhere in Australia; (iii) has the purpose of preventing, restricting or limiting the supply of industrial flexible polyurethane foam to acquirers of industrial flexible polyurethane foam, in particular circumstances or on particular conditions anywhere in Australia. 6. The first and second respondents shall pay the applicant's costs of and incidental to these proceedings fixed in the sum of one hundred thousand dollars ($100,000). 7. The contents of the exhibits "PL-1" to PL-17" both inclusive to the affidavit of Phillip Lait sworn 26 November 1997 and the contents of the affidavit of Phillip Lait sworn 9 December 1997 and exhibits thereto being exhibits "PL-18" to "PL-103" both inclusive are to be kept confidential and are not to be disclosed to any person except the parties and their legal advisers without the leave either of the first respondent being first obtained in writing or of the Court. Any application to the Court for leave is only to be made after not less than seven (7) days notice in writing of such application is given to the first respondent through its legal advisers. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules