Peters (WA) Ltd v Petersville Ltd [2001] HCA 45

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

PETERS (WA) LTD APPELLANT

AND

PETERSVILLE LTD & ANOR RESPONDENTS

Peters (WA) Ltd v Petersville Ltd [2001] HCA 45

9 August 2001

P64/2000

ORDER

1. Amend the style of the appellant to read "PB Foods Ltd". 2. Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation:

W S Martin QC with S M Standing for the appellant (instructed by Freehills)

T F Bathurst QC with A I Tonking for the respondents (instructed by Minter Ellison)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Peters (WA) Ltd v Petersville Ltd

Trade practices – Restraint of trade – Sale of business – Appellant manufactured and sold ice cream products in Western Australia under the "Peters" marks – Respondents manufactured and sold ice cream products under the "Pauls" marks nationally and under the "Peters" marks in every State except Western Australia – Sale of respondents' Western Australian ice cream business to appellant – Sale agreement provided that the appellant be granted the exclusive right and licence to use the "Pauls" marks in Western Australia in return for percentage royalty – Sale agreement contained covenant restraining respondents from selling ice cream products in Western Australia – Restraint coextensive with duration of licensing arrangements but extended to ice cream products to which licensing arrangements not applicable – Whether restraint is one to which the common law restraint of trade doctrine applies.

Trade practices – Restraint of trade – Circumstances in which the restraint of trade doctrine does not apply – Whether "sterilisation of capacity test" should be adopted in Australia.

Trade practices – Restraint of trade – Development of common law respecting restraint of trade – Considerations of public interest – Relationship between doctrine of "restraint of trade" and Trade Practices Act 1974 (Cth).