Australian Competition & Consumer Commission v Universal Music Australia Pty Limited [2001] FCA 1800

FEDERAL COURT OF AUSTRALIA Australian Competition & Consumer Commission v Universal Music Australia Pty Limited [2001] FCA 1800 TRADE PRACTICES – restrictive practices – proceedings for pecuniary penalty brought against each of two major record companies and executives of them in respect of refusal to supply retailers who dealt in imported compact discs following the legalisation of parallel importing – whether each record company had substantial degree of market power as a result of the need for retailers to stock chart music and back catalogue titles, notwithstanding market share of approximately 15% - whether record companies took advantage of market power in refusal of supply – whether contravention of s 46 or s 47 of the Trade Practices Act 1974 (Cth)

TRADE PRACTICES – restrictive practices – whether each of the record companies contravened s 45 of the Trade Practices Act 1974 (Cth) in requesting action to be taken in Indonesia to restrict supply by Indonesian related companies to wholesalers in Indonesia desiring to sell to Australian retailers

TRADE PRACTICES – restrictive practices – accessorial liability – whether individual respondents knowingly concerned in or party to contraventions by their employer of ss 46 and 47 of the Trade Practices Act 1974 (Cth) – whether evidence of participation sufficed to prove participation in or knowing concern of acts constituting contraventions

Trade Practices Act 1974 (Cth) ss 45(2)(a)(ii), 45(3), 45(4), 45(8), 46, 47(2), 47(3), 47(10), 47(13), 75B

Tru Tone Ltd v Festival Records Retail Marketing Ltd (1988) 2 NZLR 352 at 360 cited United States v E I du Pont de Nemours & Co 351 US 377 (1956) discussed United States v Eastman Kodak 853 F Supp 1454 (1994) cited Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177 applied Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) 178 ALR 253 at 258 applied D & R Byrnes (Nominees) Pty Ltd v The Central Queensland Meat Export Co Pty Ltd (1990) ATPR 41-028 cited Australian Competition and Consumer Commission v Boral Ltd (2000) 106 FCR 328 considered Dowling v Dalgety Australia Ltd (1992) 34 FCR 109 cited Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43 cited Standard Fashion Company v Magrane-Houston Company (1921) 258 US 346 considered SWB Family Credit Union Ltd v Parramatta Tourist Services Pty Ltd (1980) 32 ALR 365 distinguished Trade Practices Commission v Tepeda Pty Ltd (t/as Metro Motor Market) (1994) ATPR 41-319 distinguished Hecar Investments No 6 Pty Ltd v Outboard Marine Australia Pty Ltd (1982) 41 ALR 697 cited Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) 44 ALR 173 at 191-2 cited Monroe Topple & Associates Pty Ltd v The Institute of Chartered Accountants in Australia [2001] FCA 1056 cited News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 cited