Australian Competition and Consumer Commission v Barton Mines Corporation & Ors [2006] FCA 1264

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Barton Mines Corporation & Ors [2006] FCA 1264

Trade Practices – restrictive trade practices - exclusionary provision - penalties under s 76 of the Trade Practices Act (Cth) for contraventions of Part IV – effect of agreement between the parties on joint submissions proposing particular orders – object of ensuring compliance with the Act by deterrence Held – exclusionary provision in the contract constituted a breach of s 45(2)(a)(i) of the Act Trade Practices Act 1974 (Cth)

ACCC v Midland Brick Company Pty Ltd (2004) 207 ALR 329 ACCC v Francis (2004) 142 FCR 1 NW Frozen Foods Pty Ltd v ACCC (1996) 71 FCR 285 Rural Press Limited v ACCC (2003) 216 CLR 53 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v BARTON MINES CORPORATION & ORS VID 191 OF 2005

TRACEY J

22 SEPTEMBER 2006

MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 191 OF 2005

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: BARTON MINES CORPORATION & ORS

Respondent

JUDGE: TRACEY J DATE OF ORDER: 22 SEPTEMBER 2006

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. Paragraphs 1 and 2 of the orders made on 8 August 2005 are set aside. 2. The Applicant is given leave to discontinue the proceeding in respect of all claims made against the Third Respondent, and the proceeding to that extent is hereby discontinued, with no order as to costs on the condition that the Applicant takes no steps to reinstitute the proceeding or institute other proceedings against the Third Respondent in relation to the matters that are the subject of the claims made against the Third Respondent in the Statement of Claim. 3. The Applicant is given leave to file and serve an Amended Application and Amended Statement of Claim. 4. The First and Second Respondents are given leave to file and serve an Amended Defence. 5. The Court declares that the First and Second Respondents contravened s 45(2)(a)(i) of the Trade Practices Act 1974 (Cth) ('the Act') by making an arrangement with Garnet International Resources Pty Ltd ('GIRL') and GMA Garnet Pty Ltd ('GMA'), a joint venture company owned in equal shares by the Second Respondent and GIRL, that contained a provision to the effect that: (a) the First and Second Respondents and their related bodies corporate would not sell, market or distribute alluvial garnet to customers in Western Australia and the Northern Territory; and (b) GMA would not sell, market or distribute alluvial garnet to customers in Queensland, New South Wales, Victoria, Tasmania and South Australia. Being an exclusionary provision within the meaning of s 4D of the Act by reason of that provision having the purpose of preventing the supply of alluvial garnet by the First and Second Respondents and their related bodies corporate to customers in Western Australia and the Northern Territory and of preventing the supply of alluvial garnet by GMA customers in Queensland, New South Wales, Victoria, Tasmania and South Australia. 6. The Court orders that each of the First and Second Respondents, by its directors, employees and agents or otherwise howsoever, be restrained for a period of two years from making or arriving at a contract, arrangement or understanding, two or more of the parties to which are, or are likely to be, or but for any provision of any contract, arrangement or understanding would be or would likely to be, in competition with each other in relation to the supply of alluvial garnet in Australia and which contains a provision that has the purpose of preventing, restricting or limiting: (a) the supply by all or any of the parties to the contract, arrangement or understanding, or by any body corporate related to any such parties, of alluvial garnet to customers located within a specific geographic region within Australia, or to particular persons or classes within Australia; or (b) the supply by all or any of the parties to the contract, arrangement or understanding, or by any body corporate related to any such parties, of alluvial garnet to customers located within a specific geographic region within Australia, or to particular persons or classes of persons within Australia, in particular circumstances or on particular conditions,