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ACCC v Australian Safeway Stores Pty Ltd

ACCC v Australian Safeway Stores Pty Ltd

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Case Copied 14 September 1999 18 min read

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FEDERAL COURT OF AUSTRALIA
ACCC v Australian Safeway Stores Pty Ltd [1999] FCA 1269
Evidence Act 1995 (Cth): s 55, s 97(1), s 135
Trade Practices Act 1974 (Cth)
Australian Competition Consumer Commission v CC (NSW) Pty Ltd [1999] FCA 954 (14 July 1999) distinguished
CDJ v VAJ (1998) 157 ALR 686 cited
Papakosmas v The Queen [1999] HCA 37 (McHugh J, 12 August 1999) cited
Odgers Uniform Evidence Law 3^rd ed 1998
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v AUSTRALIAN SAFEWAY STORES PTY LTD & ORS
VG 762 of 1996
GOLDBERG J
MELBOURNE
14 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 762 of 1996

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:

AUSTRALIAN SAFEWAY STORES PTY LTD
(ACN 004 319 939)
First Respondent

GEORGE WESTON FOODS
(ACN 008 429 623)
Second Respondent

MARK JONES
Third Respondent

BERNIE BROOKES
Fourth Respondent

JUDGE:

GOLDBERG J

DATE:

14 SEPTEMBER 1999

PLACE:

MELBOURNE

RULING

The applicant (“the Commission”) has sought to tender two invoices from Tip Top Bakeries to Cheapa Food Barn, Forest Hill numbered N290546 and N295469 for deliveries of bread made to Cheapa Food Barn in the weeks respectively ended 10 July 1994 and 17 July 1994. That tender is the subject of objection by the first respondent (“Safeway”) and the third respondent who submit that I should reject the tender pursuant to s 135 of the Evidence Act 1995 (Cth) on the grounds that the invoices have no probative value or alternatively that any such probative value is substantially outweighed by the danger that they might be unfairly prejudicial to the first and third respondents.
The invoices show the deliveries of bread made by Tip Top to the Cheapa Food Barn at Forest Hill on each of the days from Monday 4 July 1994 to Sunday 17 July 1994 (both inclusive) and the returns of bread made on the same days. In particular, they show that on Monday 4 July through Saturday 9 July 1994 there were deliveries of three promotional products, Hot Baked Toast 680g, Hot Baked White 680g and Hot Baked Wholemeal, each of which was priced at a unit price of $1.62 with a discount of 62 ¢ leaving a net cost price of $1.00 per unit. No such deliveries were shown on the invoices to have been made on the days on and between 10 July and 17 July 1994.
The Commission seeks to tender the invoices not as part of the proof of a particular pleaded contravention of the Trade Practices Act 1974 (Cth) (“the Act”). Rather, the tender is put on the basis that the invoices are relevant to the issue that Safeway had a policy of deleting or withdrawing plant bakers’ products from a Safeway supermarket when at the same time the plant bakers were supplying bread to an independent supermarket or retailer at such discounted wholesale prices as enabled the retailer to sell the bread at prices lower than the price at which Safeway supermarkets in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] FCA 1269
Decision Date: 14 SEPTEMBER 1999

CaseChat Overview and Summary

The case between the Australian Competition and Consumer Commission and Australian Safeway Stores Pty Ltd and others concerns the admissibility of two invoices in evidence. The Commission sought to tender invoices N290546 and N295469 from Tip Top Bakeries to Cheapa Food Barn, Forest Hill, for the weeks ended 10 July 1994 and 17 July 1994, respectively. The invoices, which detail bread deliveries and returns from 4 July 1994 to 17 July 1994, are crucial to the Commission's argument that Safeway had a policy of deleting or withdrawing plant bakers' products from their supermarkets when those bakers supplied bread at discounted prices to independent supermarkets, thereby allowing the independent retailers to sell the bread at lower prices than Safeway. The respondents objected to the admissibility of these invoices on the grounds that they had no probative value or, alternatively, that any probative value was substantially outweighed by the danger of unfair prejudice to the respondents.

The court considered the relevance and probative value of the invoices in relation to the alleged policy of Safeway. The invoices, when taken together with other evidence such as scan data and other deletions, could rationally affect the assessment of the probability of the nature and implementation of Safeway's policy. The court also evaluated whether the probative value of the invoices was substantially outweighed by the danger of unfair prejudice to the respondents. Although the issue of a Tip Top deletion was only raised during the trial, the respondents had already been confronted with the allegation of a deletion at Safeway Vermont as a result of a conversation between Mr Hanna and Mr Jones. The court concluded that the probative value of the invoices was not substantially outweighed by the danger of unfair prejudice and decided to admit the invoices into evidence.

In conclusion, the Federal Court of Australia ruled that the invoices in question would be admitted as evidence in the case. The court found that the invoices had probative value in relation to the implementation of Safeway's policy and that the danger of unfair prejudice to the respondents was not substantial enough to exclude the invoices from evidence.

Orders