Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltdand David Robert Carney & Anor [2006] FCA 1652

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltdand David Robert Carney & Anor [2006] FCA 1652

TRADE PRACTICES – Restrictive Trade Practices – Exclusive Dealing – Enforcement & Remedies – Pecuniary Penalty – Jointly proposed penalty – Principles to be applied by the Court in determining whether to order the imposition of a pecuniary penalty where parties propose a particular sum - Public interest in prompt resolution of trade practices litigation Trade Practices Act 1974 (Cth) Australian Competition and Consumer Commission v ABB Power Transmission Pty Ltd [2004] FCA 819; (2004) ATPR 42-011 considered Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd (Administrators Appointed) [2004] FCA 376 (2004); ATPR 41-983 referred to Commerce Commission v New Zealand Milk Corporation Ltd [1994] 2 NZLR 730 referred to Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; (2004) ATPR 41-993 referred to N W Frozen Foods Pty Ltd v Australian Competition & Consumer Commission (1997) 71 FCR 285 applied Thomson Australian Holdings Pty Ltd v The Trade Practices Commission (1981) 148 CLR 150 followed AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v FILA SPORT OCEANIA PTY LTD AND DAVID ROBERT CARNEY & ANOR NSD 926 OF 2002

TRACEY J

5 DECEMBER 2006

MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY 926 OF 2002

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: FILA SPORT OCEANIA PTY LTD

First Respondent

DAVID ROBERT CARNEY

Second Respondent

CRAIG JAMES REIDY

Third Respondent

JUDGE: TRACEY J

DATE OF ORDER: 27 November 2006

WHERE MADE: MELBOURNE

THE COURT DECLARES THAT: 1. Between September or October 1999 and November 2000, the second respondent was a person involved in a contravention by the first respondent of s 47 of the Trade Practices Act 1974 (Cth). THE COURT ORDERS THAT: 2. The second respondent pay to the Commonwealth a pecuniary penalty pursuant to s 76 of the Trade Practices Act 1974 (Cth) in respect of his conduct referred to in para 1 above, in the amount of $20,000 by four yearly instalments of $5,000 each, the first such instalment payable on or before 30 June 2007, and the second, third and fourth instalments payable on or before 30 June 2008, 30 June 2009 and 30 June 2010 respectively, provided that if the second respondent defaults in any payment and the default continues for one month after written notice of the default, the total outstanding balance shall become immediately due and payable. 3. The applicant and the second respondent bear their own costs of and incidental to the proceeding against the second respondent. 4. The proceeding against the second respondent be otherwise dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.