Kadkhudayan v W D & H O Wills (Australia) Limited (ACN 004 069 649) [2001] FCA 645

FEDERAL COURT OF AUSTRALIA Kadkhudayan v W D & H O Wills (Australia) Limited (ACN 004 069 649) [2001] FCA 645

TRADE PRACTICES – whether respondent manufacturer's policy of refusal to offer promotional payments to retailer selling manufacturer's goods below stipulated price amounted to resale price maintenance – purpose of promotional policy in determining intention of manufacturer to engage in resale price maintenance. TRADE PRACTICES – misuse of market power – whether advantage taken by manufacturer of its power in the market by refusal to supply applicants – intention of manufacturer in implementing structural changes to distribution system – market share as opposed to market power. COSTS – discretion of court to order costs – unrepresented litigants – consequences of respondent's actions on financial resources of applicants – respondent's risk of order for costs – public interest litigation. Trade Practices Act 1974 (Cth) ss 45, 46, 46(1), 46(1)(c), 48, 82, 98(2) Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617 referred to Trade Practices Commission v BP Australia Ltd (1985) 7 FCR 499 referred to Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168 referred to Heating Centre Pty Ltd v Trade Practices Commission (1986) 9 FCR 153 referred to Commisioner of Trade Practices v Dalgety Australia Ltd (1973) 22 FLR 62 referred to Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13 applied Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 106 ALR 297 referred to Cachia v Hanes (1994) 179 CLR 403 referred to Oshlack v Richmond River Council (1998) 193 CLR 72 applied

HASSAN KADKHUDAYAN AND KATAYOUN KADKHUDAYAN v W D & H O WILLS (AUSTRALIA) LIMITED (ACN 004 069 649) SG 127 OF 1998 LEE J PERTH (HEARD IN ADELAIDE) 31 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA