Australian Competition & Consumer Commission v Ithaca Ice Works Pty Ltd [2000] FCA 997

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Ithaca Ice Works Pty Ltd [2000] FCA 997 TRADE PRACTICES – restrictive trade practices – enforcement and remedies – agreement between parties as to appropriate remedy – substantial weight to be given to agreement – need for proportionality to be maintained in various penalties imposed Trade Practices Act 1974 (Cth), subpars 45(2)(a)(i), 45(2)(a)(ii), 45(2)(b)(i), 45(2)(b)(ii) Trade Practices Commission v Allied Mills (No 4) (1981) 37 ALR 256 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v ITHACA ICE WORKS PTY LIMITED, QUEENSLAND ICE SUPPLIES PTY LIMITED, ANSONGUARD PTY LIMITED, KENNETH JOHN SMITH, ANTHONY JOHN MEE, GREGORY PAUL MEE, BRIAN BRADLEY, LEO GREVIS, GARY JOHN GREVIS, RODERICK IAN MATHESON AND JACK NUMAN BERRY Q 216 OF 1999 DOWSETT J 26 JULY 2000 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 216 OF 1999

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

APPLICANT

AND: ITHACA ICE WORKS PTY LIMITED (ACN 009 660 306)

FIRST RESPONDENT

QUEENSLAND ICE SUPPLIES PTY LIMITED (ACN 010 201 180)

SECOND RESPONDENT

ANSONGUARD PTY LIMITED (ACN 010 589 929)

THIRD RESPONDENT

KENNETH JOHN SMITH

FOURTH RESPONDENT

ANTHONY JOHN MEE

FIFTH RESPONDENT

GREGORY PAUL MEE

SIXTH RESPONDENT

BRIAN BRADLEY

SEVENTH RESPONDENT

LEO GREVIS

EIGHTH RESPONDENT

GARY JOHN GREVIS

NINTH RESPONDENT

RODERICK IAN MATHESON

TENTH RESPONDENT

JACK NUMAN BERRY

ELEVENTH RESPONDENT

JUDGE: DOWSETT J

DATE: 26 JULY 2000

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 In these proceedings the applicant seeks pecuniary penalties and injunctive relief against various persons engaged in the market for the supply of party ice, block ice and bulk ice in the geographical area which includes Brisbane, Ipswich, the Sunshine Coast and the Gold Coast (including Tweed Heads) during the period 1993 – 1996. All of the respondents were either suppliers of ice within that market area or were employed by one or other of those suppliers. In 1993 the annual turnover in the market was of the order of $2.5 - $3 million, rising to about $5.5 million by September 1996. The following table gives particulars of relevant market shares: Supplier Market Share 1993 1996 Presently 1st Respondent 50 – 60 % 60 – 70 % > 75 % 2nd Respondent 20 – 25 % 20 – 25 % 15% 3rd Respondent < 5 % < 5 % < 5 % 4th Respondent < 1 % < 1 % Sold Business 10th Respondent < 5 % < 5 % 5 % 11th Respondent < 5 % < 5 % < 5 %