Australian Competition & Consumer Commission v Ferndale Recyclers Pty Limited [2004] FCA 1597

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Ferndale Recyclers Pty Limited [2004] FCA 1597

TRADE PRACTICES – exclusionary provisions – scrap metal industry – auctions – agreement among merchants – nominated bidder – controlled or restricted bidding at auction – subsequent allocation of a payment for goods – loss or damage unquantified – defending respondents – market – application of totality principle – where company is alter ego of individual – penalty – factors to be considered in determining penalties for contravention of Trade Practices Act – application of the "French factors" and the "Heerey factors" – permissible range – proposed penalties – mitigation of penalties. COSTS – agreement between applicant and respondents and determination of proposed costs – allowance for time not applicable to these respondents.

Trade Practices Act 1974 (Cth) ss 4D, 4F, 45, 45A, 76, 80

Miller's Annotated Trade Practices Act 2004 ed

Australian Competition & Consumer Commission v D M Faulkner Pty Limited [2004] FCA 1666 applied Australian Competition & Consumer Commission v ABB Transmissions & Distribution Ltd (No 2 – Distribution Transformers) (2002) 190 ALR 169 applied Australian Competition & Consumer Commission v ASIC [2000] NSWSC 316 cited Australian Competition & Consumer Commission v SIP Australia Pty Ltd (1999) ATPR 41-702 cited Australian Competition & Consumer Commission v McMahon Services Pty Ltd (No 1) [2004] FCA 1171 cited Australian Competition & Consumer Commission v NW Frozen Foods (1996) 71 FCR 285 approved Australian Competition & Consumer Commission v Visy Paper Pty Ltd No 2 [2004] FCA 1471 followed Boral Besser Masonry Limited v Australian Competition & Consumer Commission (2003) 195 ALR 609 followed Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43 cited Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Company Ltd (1989) 167 CLR 177 followed Rural Press Ltd v Australian Competition & Consumer Commission (2002) 193 ALR 399 cited Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1972) 42 FLR 331 discussed Trade Practices Commission v CSR Limited (1991) ATPR 41-076 approved Trade Practices Commission v TNT Australia (1995) ATPR 41-375 followed