Australian Competition and Consumer Commission v Alinta 2000 Limited [2007] FCA 1362

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Alinta 2000 Limited [2007] FCA 1362

COMPETITION LAW – application by Australian Competition and Consumer Commission for declaratory and other relief – breach of undertaking given by respondent for purposes of Trade Practices Act 1974 (Cth)s 87B – proceeding settled – declarations and orders by consent AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v ALINTA 2000 LIMITED (ACN 40 087 857 001) VID 1014 OF 2006

WEINBERG J

29 AUGUST 2007

MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1014 OF 2006

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: ALINTA 2000 LIMITED (ACN 40 087 857 001)

Respondent

JUDGE: WEINBERG J

DATE OF ORDER: 29 AUGUST 2007

WHERE MADE: MELBOURNE

BY CONSENT THE COURT DECLARES THAT:

1. At all material times from 23 January 2006 until 6 October 2006 Shelley Kalms was, within the meaning of cl 5.4 of the undertaking given to the Australian Competition and Consumer Commission for the purposes of s 87B of the Trade Practices Act 1974 (Cth) on 22 October 2004, a member of the staff of Alinta 2000 Limited. 2. On or about 23 January 2006 Alinta 2000 Limited transferred Shelley Kalms to a position in which she was involved in commercial negotiations between DBNGP Holdings Pty Limited and various Contracted Shippers, or Prospective Shippers (as defined in cl 1.1 of the Undertaking). 3. The conduct of Alinta 2000 Limited in transferring Shelley Kalms into the position described above and permitting her to remain in that position in circumstances where Alinta 2000 Limited knew that she was involved in commercial negotiations with the said Contracted Shippers or Prospective Shippers constituted a breach by Alinta 2000 Limited of cl 5.4 of the Undertaking. AND THE COURT ORDERS THAT: 4. The respondent shall pay the applicant's costs of and incidental to the proceedings (including all reserved costs) fixed in the sum of $250,000. 5. Order 8 of the orders made on 16 March 2007 be vacated. 6. The respondent shall pay to DBNGP (WA) Transmission Pty Ltd, DBNGP (WA) Nominees Pty Ltd (in its own capacity and in its capacity as trustee of the DBNGP WA Pipeline Trust), DBNGP Holdings Pty Limited (in its own capacity and in its capacity as trustee of the DBNGP Trust), DBNGP (WA) Finance Pty Ltd, DBNGP Finance Co Pty Ltd or DBNGP Compressor Co Pty Ltd, (collectively "DBP") all reasonable costs, charges or expenses incurred as a consequence of the order that DBP give non-party discovery in these proceedings, including DBP's costs of and occasioned by: 6.1 the applicant's request for non-party discovery; 6.2 complying with order 7 of the orders made on 16 March 2007 in relation to DBP's costs; 6.3 the amendment to the orders of 16 March 2007 in relation to DBP's costs; 6.4 negotiating and agreeing or obtaining orders as to the amount to be paid to DBP in respect of its costs, such costs to be agreed between DBP and the respondent or otherwise to be taxed. 7. Only those partners or employed legal staff of the respondent's lawyers who have signed confidentiality undertakings in the form of Annexure A are to be involved in the determination of the costs to be paid by the respondent to DBP under order 6 above. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA