Australian Competition and Consumer Commission v Liqourland (Australia) Pty Limited [2006] FCA 1799

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Liqourland (Australia) Pty Limited [2006] FCA 1799

TRADE AND COMMERCE – TRADE PRACTICES - PENALTY AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v LIQUORLAND (AUSTRALIA) PTY LIMITED AND WOOLWORTHS LTD NSD 769 OF 2003

ALLSOP J

22 DECEMBER 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 769 OF 2003

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: LIQUORLAND (AUSTRALIA) PTY LIMITED

First Respondent

WOOLWORTHS LTD

Second Respondent

JUDGE: ALLSOP J

DATE OF ORDER: 22 DECEMBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. In respect of the contraventions by the second respondent of s 45(2)(a)(i) and (ii) and (b)(i) and (ii) of the Trade Practices Act 1974 (Cth)constituted by the entry into and giving effect to the written agreements in the form of the deeds: (a) dated 26 November 1998 with Ettamogah Darling Harbour Pty Ltd, Leigh Christopher O'Brien, Ralph Joseph Patterson and the first respondent; and (b) made in or about November 2000 with David John Dixon, Donna-Marie Dixon and the first respondent and dealing with the contraventions constituted by the entry into and giving effect to each deed separately as to each episode, the second respondent pay to the Commonwealth of Australia a pecuniary penalty in the sum of $1,750,000 in respect of each group of contraventions. 2. In respect of the contraventions by the second respondent of s 45(2)(a)(ii) and (b)(ii) of the Trade Practices Act 1974 (Cth)constituted by the entry into and giving effect to the written agreements in the form of deeds: (a) dated 18 August 1997 with Jin Ro Australia Pty Ltd, Deannah Jang and the first respondent; and (b) dated 1 March 2000 with Sandra May Hopkins, the Palms Shopping Village Pty Ltd, John Saunders, Malcolm Logan, Thomas Cahill, the first respondent and D & D Haslam Pty Ltd and dealing with the contraventions constituted by the entry into and giving effect to each deed separately as to each episode, the second respondent pay to the Commonwealth of Australia a pecuniary penalty in the sum of $1,750,000 in respect of each group of contraventions. 3. For the avoidance of doubt, orders 1 and 2 represent penalties totalling $7,000,000, being $1,750,000 for the Ettamogah episode, $1,750,000 for the Jin Ro episode, $1,750,000 for the Palms Village episode and $1,750,000 for the Global Beer episode, as those phrases are to be understood by reference to the reasons for judgment herein dated 30 June 2006. 4. The second respondent by itself, its servants, agents or otherwise be restrained from relying on, or enforcing in any way, any of the agreements referred to in orders 1(a) and (b) and 2(a) and (b) above or any terms thereof. 5. If the applicant is to press for relief in the nature of the independent report discussed in the reasons published today: (a) the applicant bring into Court not later than 29 January 2007 orders providing for a report to the applicant no later than 31 July 2007; (b) the applicant consult with the second respondent in respect of the terms of such order; (c) the proceedings stand over to a date to be fixed after 31 July 2007 in respect of any claim for injunctive relief, consequent upon consideration of any report referred to in order 5(a) above; and (d) if there is to be any debate about the making of the order for the report the argument as to that matter stand over to a date to be fixed in February 2007. 6. The second respondent pay the applicant's costs of the proceedings. 7. To the extent that orders 5 and 6 mean that these orders together with the orders made on 11 August 2006 remain interlocutory thus requiring leave to appeal, leave to appeal is granted and the time for filing any notice of appeal from the orders made on 11 August 2006 and today be extended up to and including 16 February 2007. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA