ACCC v Australian Safeway Stores Pty Limited (No 2) [2001] FCA 1861

FEDERAL COURT OF AUSTRALIA

ACCC v Australian Safeway Stores Pty Limited (No 2) [2001] FCA 1861 EVIDENCE – civil standard of proof – allegations of serious misconduct or significant contraventions – reasonable satisfaction is not attained independently of nature and consequences of fact or facts to be proven – application of Briginshaw principle. EVIDENCE – credibility – reliability of witnesses – attack on credibility – evidence given considerable time after events occurred. TRADE PRACTICES – allegations of contraventions of Trade Practices Act 1974 (Cth) – policy – purpose of policy – whether purpose competitive or punitive – whether purpose of policy was to procure competitors to stop discounting products – whether requesting supply at a price comparable to price charged to competitors is competitive and not punitive conduct. TRADE PRACTICES – conduct engaged in on behalf of a body corporate – authority to bind company – actual and apparent authority – contract or arrangement partly oral and partly implied – necessary to identify person or persons who entered into contract or arrangement. TRADE PRACTICES – taking advantage of market power – whether conduct constituted taking advantage of market power – substantial degree of market power – purpose for which market power used – identification of relevant market – wholesale or retail market – economic theories on market power – barriers to entry into market – monopoly and monopsony power – excess capacity – market power determined by ability of corporation to act in manner that it could not if faced with competition – whether respondent would have acted in same manner if it did not possess its market power. TRADE PRACTICES – exclusive dealing – refusal to purchase – whether refusal to purchase from manufacturer unless able to buy at price matching the price offered to competitor constitutes exclusive dealing – whether refusal to purchase because supplier has supplied competitor at a particular price constitutes exclusive dealing – meaning of "except to a limited extent". TRADE PRACTICES – resale price maintenance – prices charged by competitor – whether induced or attempted to induce manufacturer to take action in relation to supply of product to or the prices charged by competitor – request for same wholesale price as competitor – whether refusal to purchase unless manufacturer offers wholesale price matching the price offered to competitor constitutes resale price maintenance – not necessary for specific price to be identified – sufficient if price specified by reference to standard or formula or range by reference to which price is to be determined – price range must be identifiable – whether fait accompli constitutes inducing resale price maintenance. TRADE PRACTICES – price fixing – whether conduct amounted to agreement to fix prices – necessary to identify persons entering into agreement – authority to bind company – whether conduct amounted to agreement on prices to be charged by manufacturer selling goods in retail market and on particular products to be sold. TRADE PRACTICES – conduct engaged in on behalf of a company – principles – relevant factors in determining whether acts and knowledge of employees are attributable to the company – actual and apparent authority – whether employee part of the directing mind and will of the company – authority to implement contract, arrangement or understanding.