ASX Operations Pty Ltd v Pont Data Australia Pty Ltd

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Re: ASX OPERATIONS PTY. LIMITED and AUSTRALIAN STOCK EXCHANGE LIMITED
And: PONT DATA AUSTRALIA PTY. LIMITED
No. G344 of 1990
FED No. 179
Trade Practices
(1991) 13 ATPR 41-109/100 ALR 125
27 FCR 460

COURT

IN THE FEDERAL COURT OF AUSTRALIA


NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Gummow(1) and Von Doussa(1) JJ.
CATCHWORDS

Trade Practices - contravention of ss. 45, 46 of Trade Practices Act 1974 - appropriate relief - whether declarations should be made setting aside ab initio the agreements the requirement for entry into which in 1988 and 1989 contravened those provisions - what terms should be imposed for payment for electronically disseminated information supplied whilst the agreements were on foot - exercise of powers under s. 87 of the Act - form of injunctive relief under s. 80 of the Act.

Trade Practices Act 1974

Federal Court of Australia Act 1976

Trade Practices Amendment Act 1977

Trade Practices Revision Act 1986

Trade Practices (MisUse of Trans-Tasman Market Power) Act 1990

Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1

Trade Practices Commission v Australian Iron and Steel Pty Limited (1990) 22 FCR 305

Kartell v Blue Shield of Massachusetts, Inc. 749 F 2d 922 (1984)

Munchies Management Pty Ltd v Belperio (1988) 84 ALR 700

HEARING

SYDNEY

#DATE 19:4:1991

Counsel and solicitors Mr A.R. Emmett QC and Mr Peter Comans
for the appellants: instructed by Messrs Minter Ellison.

Counsel and solicitors Mr N.A. Cotman instructed
for the respondent: by Messrs Baker and McKenzie.

ORDER

Orders that, save for Orders 7, 9, 10 and 12, the declarations and orders made by Wilcox J. on 31 May 1990 be set aside.

Declares that by requiring the respondent to execute or take supply of Signal C pursuant to the Signal C Agreement for Dynamically Updating Systems dated 9 September 1988 ("the Dynamic Agreement"), and by attempting to give effect to the Dynamic Agreement, the appellants have and each of them has engaged in conduct in contravention of paras 45 (2) (a) (i), 45 (2) (a) (ii), 45 (2) (b) (i), 45 (2) (b) (ii), and 46 (1) (c) of the Trade Practices Act 1974 ("the Act").

Declares that by requiring the respondent to execute, or to take supply of Signal C pursuant to the Signal C Agreement for Non-Dynamic Systems dated 9 September 1988 ("the Non-Dynamic Agreement") and by attempting to give effect to the Non-Dynamic Agreement, the appellants have and each of them has engaged in conduct in contravention of paras 45 (2) (a) (i), 45 (2) (a) (ii), 45 (2) (b) (i), 45 (2) (b) (ii), and 46 (1) (c) of the Act.

Pursuant to s. 87 of the Act, declares that the Dynamic Agreement and the Non-Dynamic Agreement are void ab initio, but on terms that the respondent undertakes to the Court to pay to the first appellant:

(a) in respect of the supply of Signal C (other than supply under the Agreement for Supply of Australian Stock Exchange Information…
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Details
Case
[1991] FCA 179
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, ASX Operations Pty Ltd, comprising the Australian Stock Exchange and the Sydney Futures Exchange, contested with Pont Data Australia Pty Ltd, a company that provided electronic data dissemination services, over agreements that allegedly contravened sections 45 and 46 of the Trade Practices Act 1974. The core dispute involved whether the agreements, which required Pont Data to supply certain electronic data, were void due to anti-competitive conduct by ASX Operations and, if so, what relief should be granted. The court was tasked with determining the appropriate form of relief, including whether the agreements should be set aside ab initio, what payment terms should be imposed for data supplied during the agreements, and whether declarations and orders should be made under sections 80 and 87 of the Trade Practices Act.

The court had to resolve several legal issues, primarily whether the agreements violated the Trade Practices Act by restricting competition. The appellants argued that the agreements were necessary to ensure the quality and reliability of the data supplied, while the respondent contended that they imposed anti-competitive restrictions. Furthermore, the court needed to decide on the appropriate form of injunctive relief and the terms for any payment for services rendered under the agreements before they were declared void. The court had to balance the need to prevent anti-competitive conduct with the necessity to ensure fair compensation for services provided during the period when the agreements were in effect.

In its reasoning, the court found that the agreements did indeed contravene the Trade Practices Act by restricting competition and thus were void ab initio. However, the court held that Pont Data must compensate ASX Operations for the supply of data up until the date of the court's order, at rates prevailing before the agreements. The court also ordered that ASX Operations refund Pont Data for payments made under the agreements, with interest. Additionally, the court mandated that ASX Operations continue to supply data to Pont Data under the pre-agreement terms until further order. The court set aside most of the earlier orders by Wilcox J. but maintained some provisions regarding costs. The final orders included declarations of voidness of the agreements, payment terms, and directives on the continuation of service and cost allocations.

The final orders declared the agreements void ab initio but required Pont Data to compensate ASX Operations for data supplied before the voidness declaration, along with interest. ASX Operations was ordered to refund Pont Data for payments made under the agreements, also with interest. The court mandated that ASX Operations continue to supply data to Pont Data under the terms that applied before the agreements. Costs were allocated such that Pont Data would pay ASX Operations' costs of the original proceeding, while ASX Operations bore its own appeal costs except for those referrable to the February 1991 hearing. The court granted liberty to apply for further orders.

Orders

Orders of the court

Orders that, save for Orders 7, 9, 10 and 12, the declarations and orders made by Wilcox J. on 31 May 1990 be set aside.

Declares that by requiring the respondent to execute or take supply of Signal C pursuant to the Signal C Agreement for Dynamically Updating Systems dated 9 September 1988 ("the Dynamic Agreement"), and by attempting to give effect to the Dynamic Agreement, the appellants have and each of them has engaged in conduct in contravention of paras 45 (2) (a) (i), 45 (2) (a) (ii), 45 (2) (b) (i), 45 (2) (b) (ii), and 46 (1) (c) of the Trade Practices Act 1974 ("the Act").

Declares that by requiring the respondent to execute, or to take supply of Signal C pursuant to the Signal C Agreement for Non-Dynamic Systems dated 9 September 1988 ("the Non-Dynamic Agreement") and by attempting to give effect to the Non-Dynamic Agreement, the appellants have and each of them has engaged in conduct in contravention of paras 45 (2) (a) (i), 45 (2) (a) (ii), 45 (2) (b) (i), 45 (2) (b) (ii), and 46 (1) (c) of the Act.

Pursuant to s. 87 of the Act, declares that the Dynamic Agreement and the Non-Dynamic Agreement are void ab initio, but on terms that the respondent undertakes to the Court to pay to the first appellant:

(a) in respect of the supply of Signal C (other than supply under the Agreement for Supply of Australian Stock Exchange Information Outside Australia dated 13 June 1989 ("the Foreign Agreement")) for the period from 9 September 1988 and until further order of the Court or agreement by the respondent and the first appellant, fees calculated in accordance with the rates for the supply of Signal C prevailing between those parties immediately prior to 9 September 1988, and

(b) moneys due and owing but unpaid at the date of these orders under the Foreign Agreement,

together with, in respect of all such moneys, interest calculated at the rates applicable from time to time for judgment debts pursuant to the New South Wales Supreme Court Rules.

Pursuant to s. 87 of the Act, orders that the first appellant pay to the respondent all moneys paid by the respondent pursuant to the provisions of the Dynamic Agreement and the Non-Dynamic Agreement and interest on such moneys at rates prescribed from time to time pursuant to the Rules of the Supreme Court of New South Wales, for judgment debts, and further orders that the first appellant may set off against those moneys all moneys payable to it by the respondent as provided in Order 4 hereof.

Orders that until further order, or further agreement between the first appellant and the respondent, the first appellant continue to supply Signal C to the respondent on the terms and conditions upon which it was supplied to the respondent immediately before 9 September 1988.

Orders that the appellants pay the respondent's costs of the proceeding at first instance, including reserved costs.

Orders that the respondent pay the appellants' costs of the appeal referrable to the hearing on 20 February 1991 but otherwise makes no order as to costs of the appeal.

Grants liberty to apply on 14 days' written notice.

Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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