ASX Operations Pty Ltd v Pont Data Australia Pty Ltd

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 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.

JUDGE1

These reasons are to be read with those delivered on 19 December 1990, reported (1991) 97 ALR 513. As we then indicated, the appeal was stood over for further submissions as to the appropriate form of relief. We received those submissions on 20 February 1991.

It will be recalled that ASXO and Pont are parties to three agreements, the Dynamic Agreement and the Non-Dynamic Agreement, both dated 9 September 1988, and the Foreign Agreement, dated 13 June 1989. Pont may terminate each agreement on one month's prior written notice; ASXO may do so on 30 June in any year on giving Pont prior written notice of not less than 3 months.
The Foreign Agreement
When the hearing of the appeal resumed on 20 February 1991, it became apparent that there was a threshold question concerning the Foreign Agreement. Counsel for both parties appeared to accept that any relief concerning the Foreign Agreement would be based solely upon the contravention of the terms of sub-s. 45 (2) and s. 4D of the Trade Practices Act 1974 ("the TP Act") as to exclusionary provisions. We had upheld the decisions of the learned primary judge as to contravention of para 46 (1) (c) and sub-s. 45 (2), in relation to competition in the information market, a term which, in the light of s. 4E, was to be understood as the information market in Australia. JECNET, whose activities we described in our earlier reasons, provides its services in respect of Signal C information only to Australian clients.
In the negotiations leading up to the execution of the two agreements dated 9 September 1988, ASXO had taken the view, contrary to that of Pont, that the dissemination of ASX data domestically and abroad were two distinct matters which required separate consideration. In September, Pont was told that the "international agreement" would be forwarded by ASXO only after Pont had entered, as it did, into the two Australian agreements. A draft for that agreement was provided late in October 1988 and rancorous negotiations followed, leading to a threat by ASXO on 29 May 1989 that if the agreement were not executed by Pont promptly, the supply of Signal C to Pont would be discontinued. Pont executed the Foreign Agreement on 13 June 1989, telling ASXO that it did so under protest, and that it objected to the terms thereof on grounds similar to those of which it had complained before execution of the two Australian agreements.
We should add that Pont had taken the position, contrary to that of ASXO, that the 1982 contract did not require payment in respect of distribution of data to Pont's overseas clients. On 29 May 1989, in the letter giving the ultimatum for execution of the Foreign Agreement, ASXO had said it was prepared to require payment of royalties on "international dissemination" only for the period since 9 September 1988, provided the Foreign Agreement was now executed by Pont.
The Foreign Agreement defines Pont as "the Carrier", and provides for the supply by ASXO to Pont of the ASX Signal (as explained in our earlier reasons) on a real time basis for transmission of the Signal C information "to licensees outside Australia": cl. 2 (1). As is the case with the Non-Dynamic Agreement (and unlike the Dynamic Agreement), the Foreign Agreement does not provide for the joinder of any licensee as a party.
Counsel for the appellants submitted that the Foreign Agreement did not impose restraints upon the sale or supply of information to persons other than the licensees. But cl. 7 obliges Pont to ensure that any agreement which it may enter with licensees shall be upon terms not in any way inconsistent with the Foreign Agreement, and obliges Pont to procure the signature of licensees to a document specifying terms of payment set out in the Schedule to the Foreign Agreement, and obliges Pont to return a copy thereof to ASXO once it has been signed by the licensee. One of the complaints made by Mr Udovich in his affidavit sworn 8 November 1989 (para 6 (f)) was that Pont had breached cl. 7. Further, para 3 (2) (b) is in the same terms as the paragraph bearing the same number in the Non-Dynamic Agreement, with an effect which was described in our earlier reasons for judgment as a prohibition upon wholesaling. Further, sub-cl. 3 (1) of the Foreign Agreement limits the rights of Pont by specifying that it obtains a non-exclusive licence to transmit the Information to licensees outside Australia, "but for no other purposes".
Thus, the Foreign Agreement contemplates the use of the Information by Pont for activities outside Australia but imposes a restraint upon wholesaling outside Australia comparable to that imposed by the Australian agreements.
In Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1 at 74, Franki J. pointed out that in s. 4D no mention is made of "market". Whilst "competition" as it appears in s. 45 (and s. 45A) is defined in sub-s. 45 (3) by reference to competition in a "market", the term "competition" does not appear in those limbs of s. 45 which proscribe exclusionary provisions. In dealing with exclusionary provisions, sub-s. 4D (1) itself requires that the parties in question be "competitive" with each other, and sub-s. 4D (2) deems persons to be competitive only if the criteria it specifies are met. But those criteria are not framed in terms of competition in a "market".
These provisions were introduced by the Trade Practices Amendment Act 1977, which followed upon the presentation in August 1976 of the Report of the Trade Practices Review Committee ("the Swanson Committee"). In its Report (paras 4.116 - 4.117) the Swanson Committee had recommended the prohibition of what are now styled exclusionary provisions and had said that in its view "such matters are appropriate to be listed by reference to their competitive effect between the parties and other persons, and not by reference to market".
We have referred to the provisions in the Foreign Agreement conferring a non-exclusive licence upon Pont to transmit the Information to licensees outside Australia, and to the restrictions upon wholesaling. Counsel for the appellants submitted that whilst it followed from the reasons we gave on 12 December 1990 that the Dynamic Agreement and the Non-Dynamic Agreement contained exclusionary provisions, nevertheless in relation to the Foreign Agreement no case had been made out for relief, in particular, for relief under s. 87. Several grounds were advanced for this conclusion.
First, it was said that no such issue had been before the primary Judge. Whilst it is true that in the Amended Statement of Claim filed on the first day of the trial, 20 November 1989, the term "the Agreements" was defined (para 40) by reference solely to the Dynamic Agreement and the Non-Dynamic Agreement, the Application filed 10 July 1989 had sought relief in respect of all three agreements, and in the Amended Statement of Claim (para 62) relief was claimed as sought in the Application. Further, in his opening address, senior counsel for Pont had relied upon the law as to exclusionary provisions (Appeal Papers 923), and the closing oral submissions of junior counsel for Pont (Appeal Papers 1219-1220) indicate that, in response to a question from his Honour, it was made plain that an attack was still made upon the Foreign Agreement. Hence, the reference by his Honour in his judgment (21 FCR at 419-420) to "the contracts" when recording the argument by Pont that they contained an exclusionary provision. Thus, whilst his Honour did not find it necessary to make findings upon the issue, it is still open to Pont to contend that it should have findings upon appeal in relation to all three agreements.
Then there were submissions to us as to the alleged extra-territorial reach of the TP Act in its application to exclusionary provisions. The difficulties which can arise from the extra-territorial operation of restrictive trade practices law are discussed, with reference to authority and to learned writings, by Lockhart J. in Trade Practices Commission v Australian Iron and Steel Pty Limited (1990) 22 FCR 305 at 318-320. The matter must be considered in Australia in the light of s. 5 of the TP Act. This provides (as amended by the Trade Practices Revision Act 1986, but before the addition of sub-s. (1A) by the Trade Practices (MisUse of Trans-Tasman Market Power) Act 1990):
"5. (1) Parts IV and V extend to the engaging in conduct

outside Australia by bodies corporate incorporated or carrying on business within Australia or by Australian citizens or persons ordinarily resident within Australia.

(2) In addition to the extended operation that sections 47 and 48 have by virtue of sub-s. (1), those sections extend to the engaging in conduct outside Australia by any persons in relation to the supply by those persons of goods or services to persons within Australia.

(3) Where a claim under section 82 is made in a proceeding, a person is not entitled to rely at a hearing in respect of that proceeding on conduct to which a provision of this Act extends by virtue of sub-section (1) or (2) of this section except with the consent in writing of the Minister.

(4) A person other than the Minister or the Commission is not entitled to make an application to the Court for an order under sub-section 87 (1) or (1A) in a proceeding in respect of conduct to which a provision of this Act extends by virtue of sub-section (1) or

(2) of this section except with the consent in writing of the Minister.

(5) The Minister shall give a consent under sub-section

(3) or (4) in respect of a proceeding unless, in the opinion of the Minister -

(a) the law of the country in which the conduct concerned was engaged in required or specifically authorised the engaging in of the conduct; and

(b) it is not in the national interest that the consent by given."

Sub-section 5 (4) would apply to the present proceeding, where relief is sought under sub-ss. 87 (1) or (1A), and neither the Minister nor the Commission is an applicant. No such consent appears to have been sought.

But is the relief under s. 87 sought in a proceeding "in respect of conduct to which a provision of this Act extends by virtue of sub-s. (1) or (2)" of s. 5? If relief is not so sought, then no consent was necessary.
The conduct proscribed in respect of an exclusionary provision, in terms of sub-s. 45 (2), is the making of the contract containing such provision, and the giving effect to such a provision. The Foreign Agreement was made in Australia. Sub-cl. 13 (1) provides:
"13. (1) This Agreement is made in and shall be governed by,

construed and take effect in accordance with the laws of New South Wales, Australia."

As we have earlier indicated, Pont signed the agreements believing them to be unacceptable and unfair, and the provisions to which it objected were included only because ASXO insisted upon their inclusion. This means that, on the footing that the Foreign Agreement contains an exclusionary provision, there was a contravention by ASXO of sub-para 45 (2) (a) (i), by the making of the Foreign Agreement in Australia. Thus, in order to found that contravention, it is not necessary to rely on sub-s. 5 (1) to extend sub-para 45 (2) (a) (i) to the engaging by ASXO in conduct outside Australia. We have no need to consider whether a further basis of liability would be established if the facts showed that ASXO had given effect to the exclusionary provision in Australia.

On the footing that the prohibition in the Foreign Agreement against wholesaling would otherwise amount to an exclusionary provision, were ASXO and Pont "competitive" with each other? The two Australian agreements presented no difficulty on the point, because Pont and ASXO (in the form of JECNET) were competitors in relation to the sale for use in Australia of information contained in Signal C. We have held that as regards these agreements, Pont made good its case in relation to the application of s. 4D.
Sub-section 4D (2) provides:
"4D. (2) A person shall be deemed to be competitive with

another person for the purposes of sub-section (1) if, and only if, the first-mentioned person or a body corporate that is related to that person is, or is likely to be, or, but for the provision of any contract, arrangement or understanding or of any proposed contract, arrangement or understanding, would be, or would be likely to be, in competition with the other person, or with a body corporate that is related to the other person, in relation to the supply or acquisition of all or any of the goods or services to which the relevant provision of the contract, arrangement or understanding or of the proposed contract, arrangement or understanding relates."

This provision relevantly deems ASXO and Pont to be "competitive" if, and only if, Pont is or is likely to be, or, but for the exclusionary provision would be, or would be likely to be, in competition with ASXO in relation to the supply of Signal C information to non-Australian users, these being the services to which the exclusionary provision relates. As we have said, JECNET provides its services only to Australian clients.
Counsel for the appellants accordingly submitted that, because there was lacking this element of competitive activity between the parties outside Australia, the parties were not "competitive" in the sense required by sub-s. 4D (2).
The contrary argument for Pont included the submission that we should infer from the evidence that competition between competitors in the information market in Australia "can be and is" affected by restrictions on freedom to supply overseas as well as to local customers. But, as counsel for the appellants emphasised, it was for Pont to make out such a case and, in truth, it had not really sought to do so at the trial. We accept that submission. It may be, as counsel for Pont suggested, that no great attention was given in the evidence to specific issues arising from the Foreign Agreement, because if the prohibition upon wholesaling in the Australian agreements failed, that might, as a practical matter, break down the effectiveness of the prohibitions in the Foreign Agreement.
In any event, what was put for Pont was not a sufficient answer to the appellants' submission that ASXO and Pont had not been shown to be competitive or to be likely to be competitive (in the sense stated in sub-s. 4D (2)) in relation to the supply of Signal C information to non-Australian users. For that reason, we would not find in Pont's favour as regards the presence in the Foreign Agreement of an exclusionary provision. The submissions of Pont upon s. 4D thus succeed only in relation to the two Australian agreements. The Foreign Agreement will stand unimpeached by the orders on this appeal.
It will be apparent that in reaching this conclusion, we have not found it necessary to deal with the further submission by the appellants that, even if Pont and ASXO had been competitive in relation to the supply of Signal C information to non-Australian users, Pont would still fail because sub-s. 4D (2) is concerned only with parties who are or would be likely to be competitive in Australia in relation to the supply or acquisition of goods or services in Australia, those being the goods or services to which the exclusionary provision relates. However, we should add that in dealing with that submission, neither side drew any attention to s. 5 and to the extended application it gives to Part IV.

We turn now to the principal subject of the further submissions, the form of relief.
Relief
In the final Orders, made 31 May 1990, the primary Judge made certain declarations and granted injunctive and other relief. The Court declared that, by requiring Pont to execute or take supply of Signal C pursuant to the three agreements, and by attempting to give effect to those agreements, ASX and ASXO had engaged in conduct in contravention of ss. 45, 46 and 49 of the TP Act. It was further declared that, by those agreements, ASX and ASXO had attempted to induce Pont to engage in conduct in contravention of s. 52. Further, acting pursuant to s. 87, the Court declared to be void and of no force or effect such provisions of the agreements as were not repeated in the document set out in the Schedule to the Orders. The Schedule set out an agreement between ASXO and Pont, which it described as an agreement made 9 September 1988 and 13 June 1989 "and varied pursuant to order of the Court". That declaration was supplemented by an order, also made pursuant to s. 87, which varied the agreements to the form set out in the Schedule.
By Order 5, ASX and ASXO were restrained from offering to supply Signal C to Pont upon, or refusing to supply except upon, conditions to the same or substantially the same effect as those provisions of the agreements declared void. The injunction went on to specify in 12 sub-paragraphs particular provisions from reliance upon which ASX and ASXO were enjoined.
By a cross-claim, ASXO alleged various breaches of the three agreements and also sought damages and an order for payment by Pont of moneys allegedly due and owing but unpaid under the agreements as license payments, access charges, unrestricted licence fees and storage fees. His Honour ordered that judgment be entered for Pont on that cross-claim.
Order 6 was in the following terms:

"Pursuant to Section 87 of the Act, (ASXO) pay to (Pont) all monies paid by (Pont) pursuant to the provisions of the Agree-ments other than a sum of $180.50 and interest on such monies at rates pre-scribed pursuant to the Rules of the Supreme Court of New South Wales."

His Honour gave leave to appeal from this and the other orders, but there was no stay. On 15 June 1990, the solicitors for Pont demanded payment from ASXO of $1,447,415.10, as the sum identified in Order 6. By arrangement subsequently made in July 1990 between the solicitors for the parties, the moneys paid pursuant to Order 6 have been placed in a separate interest bearing account to await the determination of this appeal.

Paragraph 8 of the Orders was in the following terms:

"(ASX and ASXO) be granted liberty to apply on 14 days notice in the event that they wish to adduce further evidence in relation to the amount (if any) of additional costs incurred in the supply of Signal C to (Pont) and/or the amount of any reasonable profit thereon and make application to vary the Fee referred to in the Agreement set out in the Schedule hereto."

It is necessary, then, to have regard to the terms of the Schedule. Clause 1 of the "agreement" set out therein provides for the right of Pont to terminate it on not less than one month's prior written notice, and for the right of ASXO to terminate on 30 June in any year after having given Pont not less than three months' prior written notice. Clause 3 deals with payments and before us both sides approached the matter on the footing that the payment provisions speak retro-actively, to the dates of the agreements in the original form, and in place of the original fee structure in the agreements.

Pont is required to pay to ASXO the payments described in the Schedule; such payments shall be made by Pont only once per annum, on 1 July, or pro rata to 30 June if for less than one year. ASXO may vary the fee payable but shall do so only on a basis that does not discriminate between Pont and other recipients "under such agreements"; ASXO may give Pont written notice of variation of the fee at any time prior to 1 May in any year, and such variation shall have effect on 1 July of that year.
The fees payable under the "agreement" in the Schedule to the Orders are $100 per annum in respect of "ASX/Sydney/Melbourne data", and $3,000 per annum for information included in Signal C which is data captured by AAP Information Services Pty Limited (recording trading in Perth, Adelaide or Brisbane) and data captured on behalf of Sydney Futures Exchange Limited (recording trading conducted on that Exchange). Finally, there is an "establishment fee" of $1,500 payable once only in respect of "new Recipients". Thus, there was a drastic reduction in the level of fees payable under the agreements in their original forms. We gave the details in our earlier reasons (97 ALR at 522-523).
Finally, in dealing with the Orders made on 31 May 1990, we should add that it was provided in Order 7:

"The amount of loss or damage to which (Pont) may be entitled pursuant to Section 82 of the Act and the amount that (ASX and ASXO) should be directed to pay to (Pont) pursuant to Section 87

(2) (d) of the Act be decided as separate questions."

The orders thus contemplated that after the refund, pursuant to Order 6 by ASXO of moneys paid to it by Pont, there would remain outstanding issues of damages which would be decided at a further hearing. We will return to this aspect of these orders later in these reasons.

The appellants accept that in respect of the Dynamic and Non-Dynamic Agreements, there should be declaratory and injunctive relief based upon the conclusions we reached on the appeal as regards (i) contravention of para 46 (1) (c), and (ii) contravention of sub-s. 45 (2), as regards both the likely effect of substantially lessening competition in the information market and the presence of exclusionary provisions in both agreements.
However, the appellants challenged the utility of declaratory relief as to conduct in contravention of s. 52 of the TP Act. As we pointed out in our earlier reasons (97 ALR at 540-541) there was no finding that Pont had yet contravened s. 52 by making to its customers misleading misrepresent-ations, and any threat of so doing will disappear if, as we are minded to do, the Dynamic and the Non-Dynamic Agreement are declared to be have been void ab initio. In the circumstances as they will then stand, we do not see sufficient practical utility in the making of any declaration as to contravention of s. 52. Accordingly, we will set aside the declaration in para 2 of the orders made 31 May 1990 and not replace it by any other declaration as to contravention of s. 52.
The principal complaints of the appellants concerned the effect of the Orders in reformulating the agreements and imposing upon Pont and ASXO an inappropriate fee structure.
His Honour concluded in his principal judgment that the making of an order under s. 87 varying the agreements so as to eliminate terms which contravened the Act would obviate any future loss by Pont as a result of those contraventions, and that if the variations were made retrospective to 9 September 1988 and provision was made for repayment by ASXO of payments exceeding the amounts required by the contract as varied, "past losses will be reversed and the total loss suffered by the applicant as a result of the contraventions will be reduced to nothing" (21 FCR at 426).
His Honour said (21 FCR at 427-428):

"As I have indicated, (Pont) contends that ASXO should be compelled to provide the signal at a nominal price. (ASX and ASXO) argue that this is an unreasonable proposition: that the Signal 'C' information is a valuable resource which it is entitled to exploit commercially. Counsel submit that the Court ought not to compel it to give away its asset.

I see the force of (this) submission. The Court ought not to use its power under s. 87 (2) (b) in such a manner as to force upon a party a commercially unreasonable result. The

difficulty in the present case is determining what is commercially reasonable. If ASXO operated in a competitive market, in the supply of Signal 'C', guidance would be available as to a fair price for the signal. One could look at the price charged by ASXO's competitors. But there are no competitors and, as I have held, the fees charged by ASXO are a function of its monopolistic position and its misuse of market power. They provide no assistance as to the level of fees which might be obtained by a vendor not infringing the statute.

. . .

Once it is accepted that ASXO is not entitled to misuse its monopoly position, it ought not to be regarded as unfair to compel ASXO to supply Signal 'C' at a price which reflects the cost of supplying that signal together with a margin of profit similar to that charged by competitive suppliers in the data industry. I accept that such a price is likely to be low, compared with the fees charged in the subject contracts. But that is because the cost of supply is low. In a competitive situation that low cost would be reflected in a low price.

. . .

Erring, perhaps, on the side of indulgence, I think that I should give to (ASX and ASXO) a further opportunity to demonstrate, if they are able, that there is some cost attached to the supply of Signal 'C' which they would otherwise incur; and, if so, its extent."

Accordingly, the primary Judge gave to ASX and ASXO the opportunity to adduce evidence as to the costs involved in supplying Signal C to Pont or in relation to the amount "of a reasonable profit on such costs". In his supplementary reasons delivered 18 May 1990 (which are not reported), his Honour considered the evidence that had been tendered, and concluded that it contained no useful material relevant to the issue he had left open. His Honour then decided that the orders made by the Court should require supply essentially at a nominal price, with the proviso that ASX and ASXO be permitted to make application for variation. That decision was then reflected in Order 8, which we have set out earlier in these reasons.

Counsel for the appellants submitted that the primary Judge had erred as a matter of principle in his exercise of the powers given the Court by s. 87, particularly in respect of contraventions of s. 46; it was said that the effect of his orders was to penalise ASXO rather than to compensate Pont.
It is necessary then to turn to the relevant provisions of s. 87. These are as follows:
"87. (1) Without limiting the generality of section 80, where,

in a proceeding instituted under, or for an offence against, this Part, the Court finds that a person who is a party to the proceeding has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in (whether before or after the commencement of this sub-section) in contravention of a provision of Part IV or V, the Court may, whether or not it grants an injunction under section 80 or makes an order under section 80A or 82, make such order or orders as it thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in sub-section (2) of this section) if the Court considers that the order or orders concerned will compensate the first-mentioned person in whole or in part for the loss or damage or will prevent or reduce the loss or damage. . . .

(2) The orders referred to in sub-sections (1) . . . are -

(a) an order declaring the whole or any part of a contract made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged in the conduct or a person who is involved in the contravention constituted by the conduct, or of a collateral arrangement relating to such a contract, to be void and, if the Court thinks fit, to have been void ab initio or at all times on and after such date before the date on which the order is made as is specified in the order;

(b) an order varying such a contract or arrangement in such a manner as is specified in the order and, if the Court thinks fit, declaring the contract or arrangement to have had effect as so varied on and after such date before the date on which the order is made as is so specified;

(ba) an order refusing to enforce any or all of the provisions of such a contract;

(c) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to refund money or return property to the person who suffered the loss or damage;

(d) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to pay to the person who suffered the loss or damage the amount of the loss or damage; . . .

The appellants submitted that if the Court had declared the whole or any part of a contract void, or to have been void ab initio or had varied the contract, it should have done so only if it had considered that the orders concerned would, to adapt the terms of sub-s. 87 (1), compensate Pont in whole or in part for the loss or damage suffered by the conduct which contravened Part IV or would prevent or reduce that loss or damage to Pont.
The appellants submitted that in providing for a new price at a nominal level, the Court went beyond the proper basis in s. 87 for such an order, namely the compensation of Pont for the loss or damage suffered by conduct in contravention of the Act or the prevention or reduction of such loss or damage. They also pointed to the passage which we have set out, in which his Honour said, after referring to what might be commercially reasonable, that as there were no competitors the fees charged by ASXO were a function of its monopolistic position and its misuse of market power. His Honour then concluded that those fees provided no assistance as to the level of fees which might be obtained by a vendor who did not contravene the statute. The appellants emphasised, in our view correctly, that s. 46 does not strike at "monopolists" or those in a "monopolistic position". Nor does it look to the attainment of a commercially "reasonable" result. It asks whether a corporation has a substantial degree of power in a market and then proscribes the taking advantage of that power for certain purposes. Therefore, there is no contravention of that provision by a corporation with a substantial degree of power in a market which it uses to obtain a particular price, provided that in doing so the corporation has not taken advantage of its power for a proscribed purpose.
Accordingly, we accept the submission of the appellants that his Honour fell into error in stating that, once it was accepted that ASXO "was not entitled to misuse its monopoly position", it ought not to be regarded as unfair to compel it to supply Signal C to Pont at a price which reflected the cost together with a low margin of profit.
Counsel for the appellants pointed out that the anti-trust laws of the United States appear to have no immediate analogue to para 87 (2) (b) of the TP Act. This may help to explain the reluctance manifested in the United States decisions to involve the Federal courts in rewriting contractual provisions as to price, save perhaps in the "essential facility" and patent licence anti-trust cases. The presence of para 87 (2) (b) may thus mean that this reluctance should not necessarily translate to the Australian situation. We referred to the position in the United States in our earlier reasons for judgment (97 ALR at 542). To the decisions and writings there referred to, may be added Kartell v Blue Shield of Massachusetts, Inc. 749 F. 2d 922 at 927-928 (1984) and Areeda and Turner, "Antitrust Law", 1978, 710.
No doubt, in a case such as the present, the Court has power under s. 87 to vary the contract in question, even as to matters of price payable thereunder. Nevertheless, the Court must be slow to impose upon the parties a regime which could not represent a bargain they would have struck between them.
What then should be done as regards the claim of Pont to relief under s. 87? We are reluctant to pursue any course which involves the remission of the matter for the taking of further evidence, both because of the inevitable further delay in disposing of the litigation and because the construction of a notional agreement as to price does not, in this case, appear to us to be a satisfactory course.
It is to be borne in mind that the agreements were entered into and the status quo which previously obtained was displaced by reason of the threat by ASXO to terminate supply of Signal C. The agreements are the product of that contravention of the statute by ASXO and, in their very inception, were tainted by it. Pont would be compensated (partially if not fully) for its loss or damage suffered by the conduct of ASXO in contravention of the statute, if the two agreements dated 9 September 1988 were to be declared void ab initio, but on terms designed to attain broad and substantial justice between the parties.
In that regard, relief may be granted under s. 87 on terms dealing with allowances and payment of moneys as part of a process of rescission ab initio; the equitable principles concerning rescission give some guidance here, in a general sense: Munchies Management Pty Ltd v Belperio (1988) 84 ALR 700 at 713-714. Such an approach to relief in this case would accord with the submissions for the appellants.
Before us, counsel for the appellants invited attention to the finding by his Honour (21 FCR at 390) that over a period of about two years before September 1988, Signal C was already being supplied to current subscribers including Pont under arrangements which had been negotiated some years earlier "and which were not, apparently, controversial". In the case of Pont, those arrangements stemmed from an agreement dated 25 June 1982, the term of which was to end on 30 June 1984 subject to an extension for three years to 30 June 1987 with renegotiated royalty rates for the period of the extension. On 1 June 1987, the Marketing Manager of ASX wrote to Mr Moore, Chairman of Directors of Pont, referring to negotiations as to appropriate terms and conditions for the supply of Signal C real time information. The letter concluded by stating that MIS, the Market Information Services Division of ASXO, had determined the royalties currently applying for each terminal with opportunity of access to real time information. The new royalty scale was then set out; it provided for payments at a level well below that imposed by the new agreements, but well above that provided for in the orders under appeal. The letter concluded by stating that the times of payment "remain at the present monthly basis".
It was in this setting that the Dynamic and Non-Dynamic Agreements were entered into by Pont on 9 September 1988 under threat by ASXO to terminate supply of Signal C. Before 9 September 1988, the supply of Signal C was effected pursuant to a course of conduct, as we have described. ASXO accepts that these arrangements would have been terminable by either party but only upon reasonable notice and would not have been terminable by ASXO for any purpose proscribed by Part IV of the TP Act.
Counsel for the appellants indicated acceptance of a result whereby Pont should have an order declaring the Dynamic Agreement and Non-Dynamic Agreement void ab initio, but on terms that Pont undertake to the Court to pay to ASXO (a) in respect of the supply of Signal C (other than supply under the Foreign Agreement dated 13 June 1989) for the period from 9 September 1988 and until further order of the Court or further agreement by Pont and ASXO, fees calculated in accordance with the rates prevailing between the parties immediately prior to 9 September 1988, and (b) moneys due and owing but unpaid at the date of the orders of the Full Court, 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 s. 52 of the Federal Court of Australia Act 1976. The sum so calculated would be set off against the moneys presently held in the separate interest bearing bank account under the arrangements made between the solicitors for the parties in July 1990, which we have described earlier in these reasons.

The present position would be secured by injunctive relief restraining ASXO from refusing to supply Signal C to Pont on the terms prevailing between the parties immediately prior to 9 September 1988; those terms provided for termination by either party on reasonable notice, as well as, of course, for termination by operation of law. In that regard, the position of the parties would be protected by liberty to apply to discharge or modify the injunctive relief.
The appellants accepted that if such orders were made, Order 7 of the Orders of 31 May 1990 should stand, and Pont should be left to pursue any entitlement that remained under s. 82 (and para 87 (2) (b)) to recover the amount of the loss or damage suffered by the conduct of ASXO which contravened ss. 45 and 46.
The result of orders to this effect would be to deny to ASXO any increase it might have obtained under the pre-September 1988 arrangements in the rate of fees charged after that date, had those arrangements continued. The provision for allowance of interest would not meet that deficiency. But we were informed that the appellants accepted this result, albeit without enthusiasm.
For its part, Pont resisted the displacement of the fee scale set out in the orders under appeal, in favour of the earlier scale. Counsel submitted that it would have wished at the trial to challenge the "merits" of the old scale. But whatever its "merits" that scale represented what was being paid and received over a period extending up to that immediately before 9 September 1988.
Counsel for Pont rightly said that in its original form, the 1982 agreement did not distinguish between the transmission of information in dynamic and non-dynamic mode, as did the 1988 agreements. But the correspondence in evidence indicates that by 9 September 1988 that distinction had been introduced into the arrangements between Pont and ASXO. To restore the status quo immediately before that date therefore is not to deny substantial justice to Pont. Then it was said that the terms of the 1982 agreement were such as to deny wholesaling, one of the vices which brought down the two agreements of 9 September 1988. In particular, counsel referred to the provisions of cl. 4 and 8 of the 1982 agreement. However that may be, the immediate point for present purposes is that Pont had accepted its obligations to make the payments under these earlier arrangements as they stood immediately before 9 September 1988.
We should indicate that the appellants put their case as to what relief might be granted against them on a footing that involved several formulations. That which we have discussed resembles what, in their careful written submissions, counsel for the appellants described as their clients' primary proposal. We should, however, make one further observation. The draft orders prepared by the appellants involved the addition of a schedule reformulating the terms of the 1982 agreement as the appellants believed they stood immediately before 9 September 1988 so as, as it were, to reinstate in written form a notional agreement between the parties which continued after 9 September 1988. In our view, it is not necessary to take that additional step in the orders. It is sufficient to provide for the computation of those moneys which must be paid by Pont as a term for it obtaining relief, by reference to the arrangements between the parties as they stood immediately prior to 9 September 1988. It is agreed that those arrangements would have been terminable by either side on reasonable notice. After the conclusion of this litigation, it is to be expected that the parties will enter into fresh contractual arrangements regulating their future relationship, and when this has been done, the provisions for the rate of payment specified in the orders we will make will come to an end, as the terms of the orders themselves will contemplate.
Conclusions
Accordingly, the appeal should be disposed of by declarations and orders as follows:
(1) Order that, save for Orders 7, 9, 10 and 12, the

declarations and orders made 31 May 1990 be set aside.

(2) Declare 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").

(3) Declare 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.

(4) Pursuant to s. 87 of the Act, declare that the Dynamic

Agreement and the Non-Dynamic Agreement are void ab initio, but on terms that the respondent undertake 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.

(5) Pursuant to s. 87 of the Act, order 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 pursuant to the Rules of the Supreme Court of New South Wales, for judgment debts, and further order that the first appellant may set off against those moneys all moneys payable to it by the respondent as provided in Order 4 hereof. (We have retained the reference in Order 5 to that in Order 6 of the Orders made 31 May 1990 to the interest rate prescribed by the New South Wales Supreme Court Rules, rather than include a reference to the Rules of this Court, on the footing that on this basis the solicitors negotiated the arrangement between the parties pursuant to which moneys are presently held. This has made it appropriate to provide in Order 4 for adoption of the same interest rate mechanism.)

(6) Order 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.

(7) Order that the appellants pay the respondent's costs of the

proceeding at first instance, including reserved costs.

(8) Order that the respondent pay the appellants' costs of the

appeal referrable to the hearing on 20 February 1991 but otherwise there be no order as to costs of the appeal.

(9) Liberty to apply on 14 days' written notice.

[1991] FCA 179

19 APRIL 1991