Australian Competition and Consumer Commission v Dally M Publishing and Research Pty Limited [2007] FCA 1220

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Dally M Publishing and Research Pty Limited [2007] FCA 1220

TRADE PRACTICES – Competition Code of Victoria, s 45 – enforcement and remedies – agreement between parties as to appropriate remedy AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v DALLY M PUBLISHING AND RESEARCH PTY LIMITED and DALLY RAYMOND MESSENGER VID 238 of 2007 FINKELSTEIN J MELBOURNE 10 AUGUST 2007

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 238 of 2007

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: DALLY M PUBLISHING AND RESEARCH PTY LIMITED

First Respondent

DALLY RAYMOND MESSENGER

Second Respondent JUDGE: FINKELSTEIN J DATE OF ORDER: 10 AUGUST 2007

WHERE MADE: MELBOURNE

THE COURT DECLARES THAT: 1. The First Respondent, during the period September to November 2005, attempted to contravene section 45(2)(a)(ii) of the Competition Code of Victoria as applied as a law of Victoria by section 5 of the Competition Policy Reform (Victoria) Act 1995 (the Code) by attempting to make an arrangement with funeral celebrants regularly supplying services in relation to civil funeral ceremonies conducted in connection with the services supplied by operators of funeral homes in the Melbourne metropolitan area, including funeral celebrants associated with the First Respondent trading as the International College of Celebrancy (the College), containing provisions to the effect that: (a) the College would declare to operators of funeral homes an increase in the standard fee charged by celebrants associated with the College for the supply of services in relation to civil funeral ceremonies conducted in connection with the services supplied by operators of funeral homes in the Melbourne metropolitan area, to $440 including GST, and would notify the operators that the fee would thereafter increase annually in line with the Consumer Price Index upon further notification by the College; (b) such funeral celebrants would increase and then maintain the standard fee charged by them for the supply of services in relation to civil funeral ceremonies conducted in connection with the services supplied by operators of funeral homes in the Melbourne metropolitan area to $440 including GST; (c) such funeral celebrants would thereafter increase the standard fee annually in line with the Consumer Price Index upon notification by the College; being provisions which had the purpose, or were likely to have had the effect of fixing, controlling and maintaining, the price of services supplied by celebrants in relation to civil funeral ceremonies conducted in connection with the services supplied by operators of funeral homes in the Melbourne metropolitan area. 2. The Second Respondent, during the period September to November 2005, attempted to induce persons to contravene section 45(2)(a)(ii) of the Code, by attempting to induce those persons, being the College and funeral celebrants regularly supplying services in relation to civil funeral ceremonies conducted in connection with the services supplied by operators of funeral homes in the Melbourne metropolitan area, including funeral celebrants associated with the College, to make an arrangement containing provisions to the effect that: (a) the College would declare to operators of funeral homes an increase in the standard fee charged by celebrants associated with the College for the supply of services in relation to civil funeral ceremonies conducted in connection with the services supplied by operators of funeral homes in the Melbourne metropolitan area, to $440 including GST, and would notify the operators that the fee would thereafter increase annually in line with the Consumer Price Index upon further notification by the College; (b) such funeral celebrants would increase and then maintain the standard fee charged by them for the supply of services in relation to civil funeral ceremonies conducted in connection with the services supplied by operators of funeral homes in the Melbourne metropolitan area to $440 including GST; (c) such funeral celebrants would thereafter increase the standard fee annually in line with the Consumer Price Index upon notification by the College; being provisions which had the purpose, or were likely to have had the effect of fixing, controlling and maintaining the price of services supplied by celebrants in relation to civil funeral ceremonies conducted in connection with the services supplied by operators of funeral homes in the Melbourne metropolitan area. THE COURT ORDERS THAT: