Australian Automotive Repairers' Association (Political Action Committee) Inc v Insurance Australia Limited (formerly NRMA Insurance Limited) (No 6)[2004] FCA 700

FEDERAL COURT OF AUSTRALIA

Australian Automotive Repairers' Association (Political Action Committee) Inc v Insurance Australia Limited (formerly NRMA Insurance Limited) (No 6)[2004] FCA 700 TRADE PRACTICES – exclusive dealing – Trade Practices Act 1974 (Cth) s 47(7) – motor vehicle insurance policy gives insurer right to decide to 'repair' damaged vehicle or to pay cost of repairing it to insured – insurer establishes 'Preferred Smash Repairer' ('PSR') scheme – relationship between PSR and insurer (such as 'self-assessment') is such that, generally speaking (but not always), insurer assesses insured's claim and authorises repairs more expeditiously in case of PSR than in case of any other repairer – insureds make claim over telephone to insurer's 'Teleclaims Centre' – Teleclaims Consultants recommend PSRs as against other repairers, telling insureds that assessment of claim and authorisation of repairs will be achieved sooner if insured agrees that PSR effect the repairs – if not, insurer will pay cost of repairs to insured, and it will be a matter for insured to engage a repairer to repair vehicle -– whether insurer is refusing to provide a service to insured for reason that insured does not agree to acquire services (repairs) from PSR – whether insured acquires services from PSR - whether timely assessment of claims and timely authorisation to proceed with repairs are 'services' – whether there is a refusal to supply – whether any refusal of supply by insurer is 'for the reason that' insured will not agree to acquire services (repairs) from PSR. WORDS AND PHRASES – 'acquire' – 'accept' - 'for the reason that' – 'services' – 'refuses' Trade Practices Act 1974 (Cth) ss 4(1), 4(2)(c), 47(7) Castlemaine Tooheys v Williams & Hodgson Transport Pty Ltd (1986) 162 CLR 395 applied Paul Dainty Corporation Pty Ltd v National Tennis Centre Trust (1990) 94 ALR 225 followed Australian Competition & Consumer Commission v IMB Group Pty Ltd (in liq) [2002] FCA 402 followed Visy Paper Pty Ltd v Australian Competition & Consumer Commission [2003] HCA 59 referred to Merchants' Association of New Zealand Inc v The King (1913) 32 NZLR 1233 followed Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617 followed AUSTRALIAN AUTOMOTIVE REPAIRERS' ASSOCIATION (POLITICAL ACTION COMMITTEE) INC v INSURANCE AUSTRALIA LIMITED (FORMERLY NRMA INSURANCE LIMITED) N953 of 2002 LINDGREN J 2 JUNE 2004 SYDNEY