Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [2002] FCA 619

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [2002] FCA 619

TRADE PRACTICES – resale price maintenance – penalties – joint submission regarding appropriate pecuniary penalty – weight to be accorded - principles to be taken into account

Trade Practices Act 1974 (Cth) ss 4, 45, 48, 76, 83, 87B, 96(3)(d)(i) and 96(3)(e)(ii), 98, 155 and Pts IV and V

Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375 at 40,169 NW Frozen Foods v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 291, and 298-299 Trade Practices Commission v Allied Mills (No 4) (1981) 37 ALR 256 at 259 Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79 at 86 to 87 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) ATPR 41-562 at 43,817 Trade Practices Commission v Mobil Oil Australia Ltd (1985) 4 FCR 296 at 297-8 Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091 at 17,895 Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (No 2) [2002] FCA 559 Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited [2001] FCA 383 at [4]-[6]

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v COLGATE-PALMOLIVE PTY LTD

(ACN 002 792 163)

V889 of 2000

WEINBERG J

15 MAY 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 889 OF 2000

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

APPLICANT

AND: COLGATE-PALMOLIVE PTY LTD (ACN 002 792 163)

RESPONDENT

JUDGE: WEINBERG J

DATE OF ORDER: 15 MAY 2002

WHERE MADE: MELBOURNE

THE COURT DECLARES THAT: 1. In December 1994 the respondent did an act referred to in ss 96(3)(d)(ii) and 96(3)(e)(ii) of the Trade Practices Act 1974 (Cth) ("the Act") in that the respondent: (a) withheld the supply of goods, being 20,736 packets of Colgate Regular Toothpaste, to Prego Gifts Pty Ltd ("Prego"), which intended to on-supply those goods to Chickenfeed Bargain Stores ("Chickenfeed"); and thereby (b) withheld the supply of those goods to Chickenfeed for the reason that Chickenfeed had sold or was likely to sell the goods at a price less than that specified by the respondent as the price below which the goods were not to be sold and by doing so engaged in the practice of resale price maintenance in contravention of s 48 of the Act. 2. In February 1997 the respondent did an act referred to in ss 96(3)(d)(ii) and 96(3)(e)(ii) of the Act in that the respondent supplied goods, being certain 140g Colgate Regular Toothpaste, Cool Mint Toothpaste 140g, Total Toothpaste 90G, Gow's Laundry Detergent 1kg, Ajax Liquid Gel 375ml and Ajax Creme Cleanser 375ml to Prego, which intended to on-supply those goods to Chickenfeed, only on terms that were disadvantageous to Prego and Chickenfeed, for the reason that Chickenfeed was likely to sell those goods at a price less than that specified by the respondent as the price below which the goods were not to be sold and by doing so engaged in the practice of resale price maintenance in contravention of s 48 of the Act.