Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd

[2000] FCA 1950

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Ithaca Ice Works Pty Ltd [2000] FCA 1950

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v ITHACA ICE WORKS PTY LIMITED (ACN 009 660 306), QUEENSLAND ICE SUPPLIES PTY LIMITED (ACN 010 201 180), ANSONGUARD PTY LIMITED (ACN 010 589 929), KENNETH JOHN SMITH, ANTHONY JOHN MEE, GREGORY PAUL MEE, BRIAN BRADLEY, LEO GREVIS, GARY JOHN GREVIS, RODERICK IAN MATHESON AND JACK NUMAN BERRY

Q 216 OF 1999

DOWSETT J
4 DECEMBER 2000
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 216 OF 1999

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

ITHACA ICE WORKS PTY LIMITED (ACN 009 660 306)
FIRST RESPONDENT

QUEENSLAND ICE SUPPLIES PTY LIMITED (ACN 010 201 180)
SECOND RESPONDENT

ANSONGUARD PTY LIMITED (ACN 010 589 929)
THIRD RESPONDENT

KENNETH JOHN SMITH
FOURTH RESPONDENT

ANTHONY JOHN MEE
FIFTH RESPONDENT

GREGORY PAUL MEE
SIXTH RESPONDENT

BRIAN BRADLEY
SEVENTH RESPONDENT

LEO GREVIS
EIGHTH RESPONDENT

GARY JOHN GREVIS
NINTH RESPONDENT

RODERICK IAN MATHESON
TENTH RESPONDENT

JACK NUMAN BERRY
ELEVENTH RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

4 DECEMBER 2000

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.In respect of his ancillary involvement in the contraventions of sections 45(2)(a)(i) and 45(2)(a)(ii) of the Trade Practices Act 1974, alleged in paragraph 49 of the statement of claim, a penalty in respect of all contraventions of $10,000 be imposed upon the eleventh respondent.

2.The penalty imposed upon the eleventh respondent under order 1 is to be paid to the Commonwealth of Australia in two instalments of $5,000 each.  The first to be paid no later than 9 calendar months after the date of this order and the second to be paid no later than 12 calendar months after the date of this order.  Provided that if the first instalment is not paid by the due date therefore, the whole pecuniary penalty of $10,000 shall be immediately due and payable.

THE COURT ORDERS BY CONSENT OF THE APPLICANT AND THE ELEVENTH RESPONDENT THAT:

3.The eleventh respondent be restrained, in south east Queensland and northern New South Wales, for a period of five years, from :

(i)        being directly or indirectly knowingly concerned in or party to;

(ii)       inducing or attempting to induce;  or

(iii)      aiding, abetting, counselling or procuring;

the making of, or arriving at, or giving effect to, by a corporation supplying ice, of any contract or arrangement or understanding with another supplier of ice (other than an agreement to jointly supply ice or rent ice storage cabinets to customers, or an agreement with a related entity) which contains a provision that :

(a)has the purpose or effect or likely effect that the corporation will not compete with that other supplier of ice for the supply of ice to a particular person or class of persons;

(b)has the purpose of :

(i)preventing, restricting or limiting the supply of ice to particular persons or classes of persons;  or

(ii)preventing, restricting or limiting the supply of ice to particular persons or classes of persons in particular circumstances or on particular conditions;

by all or any of the parties to the contract, arrangement or understanding;  or

(c)has the purpose or effect or likely effect of fixing, controlling or maintaining or providing for the fixing, controlling or maintaining of :

(i)the prices quoted or charged for ice supplied or offered for supply by any of the parties to the contract, arrangement or understanding in competition with one another to other persons;  or

(ii)the fees quoted or charged for rental of ice storage cabinets loaned or offered for loan by any of the parties to the contract, arrangement or understanding in competition with one another to other persons.

4.The eleventh respondent pay the applicant’s costs of and incidental to these proceedings in the agreed amount of $10,000 to be paid in two instalments of $5,000 each, the first to be paid no later than 3 calendar months after the date of this order and the second to be paid no later than 6 calendar months after the date of this order.  Provided that if the first instalment is not paid by the due date therefore, the whole costs of $10,000 shall be immediately due and payable.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 216 OF 1999

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

ITHACA ICE WORKS PTY LIMITED (ACN 009 660 306)
FIRST RESPONDENT

QUEENSLAND ICE SUPPLIES PTY LIMITED (ACN 010 201 180)
SECOND RESPONDENT

ANSONGUARD PTY LIMITED (ACN 010 589 929)
THIRD RESPONDENT

KENNETH JOHN SMITH
FOURTH RESPONDENT

ANTHONY JOHN MEE
FIFTH RESPONDENT

GREGORY PAUL MEE
SIXTH RESPONDENT

BRIAN BRADLEY
SEVENTH RESPONDENT

LEO GREVIS
EIGHTH RESPONDENT

GARY JOHN GREVIS
NINTH RESPONDENT

RODERICK IAN MATHESON
TENTH RESPONDENT

JACK NUMAN BERRY
ELEVENTH RESPONDENT

JUDGE:	DOWSETT J
DATE:	4 DECEMBER 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. As I understand it, the eleventh respondent is in a position substantially the same as that of the tenth respondent set out in my reasons of 26 July this year.  With some exceptions, it is said that he was not present at the first meeting at which the conduct complained of was discussed and that he in fact took no step to implement the agreement reached at the two meetings.  These are obviously factors which go in mitigation of penalty.

2. However, there are factors pointing in the other direction to which some weight must also be given.  Firstly, although Mr Matheson cooperated with the applicant at a very early stage of its investigations, the eleventh respondent did so at a relatively late stage.  Secondly, to some extent the penalty imposed upon Mr Matheson, the tenth respondent, reflected his asset position.  The eleventh respondent's asset position is much stronger.

3. Thirdly, the penalty imposed upon the tenth respondent reflected his age.  He was 73.  The eleventh respondent is somewhat younger, being 58, although, of course, that means that he is also getting towards the end of his working life.  The parties have proposed a penalty of $10,000 as compared with the $7,500 penalty imposed upon Mr Matheson and this seems to me to be proportionately correct.  Whereas Mr Matheson was ordered to pay costs in the amount of $2500, it is proposed that the eleventh respondent pay costs agreed in the sum of $10,000.

4. However, it is clear that that reflects additional costs incurred by the applicant in prosecuting that matter to date.  In those circumstances the proposed orders appear to me to be appropriate, and I will therefore make orders in terms of the minutes of order attached to the joint submissions of the applicant and eleventh respondent filed on 1 December 2000, which is marked Exhibit 1.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             2 February 2001

Counsel for the Applicant:	Mr G Gibson QC Mr E Ford
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Eleventh Respondent:	Mr K B Varley
Solicitor for the Eleventh Respondent:	M A Kent & Associates
Date of Hearing:	4 December 2000
Date of Judgment:	4 December 2000