Australian Competition and Consumer Commission v Mayo International Pty Ltd

[1998] FCA 937

FEDERAL COURT OF AUSTRALIA

TRADE PRACTICES - resale price maintenance - aiding, abetting, counselling or procuring contravention of Act - being knowingly concerned in or party to contravention of Act

Trade Practices Act 1974 s 76(1)(c),(e), 96(3)(b)

Yorke  & Anor v Lucas (1985) 158 CLR 661 Appl
Giorgianni v The Queen (1985) 156 CLR 473 Appl
Terrance Stanley Johns v The Queen (1980) 143 CLR 108 Appl
Regina v Bainbridge [1960] 1 QB 129 Appl
R v Ancuta [1991] 2 Qd R 413 Appl

Australian Competition and Consumer Commission v Mayo International Pty Ltd, Alan Jon Le Court, Brian McIntosh Thom and Alexandra Margaret Shaw
QG 179 of 1995

Kiefel J
Brisbane
7 August 1998

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 179 of 1995

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

MAYO INTERNATIONAL PTY LTD
FIRST RESPONDENT

ALAN JON LE COURT
SECOND RESPONDENT

BRIAN MCINTOSH THOM
THIRD RESPONDENT

ALEXANDRA MARGARET SHAW
FOURTH RESPONDENT

JUDGE:	KIEFEL J
DATE:	7 AUGUST 1998
PLACE:	BRISBANE

REASONS FOR JUDGMENT (2)

These reasons address the question of the complicity of the second, third and fourth respondents, in light of my findings earlier published. Section 76(1)(c) and (e) Trade Practices Act 1974 (Cth) has the effect that, since Mayo International has contravened provisions of Part IV of the Act, another person will also be responsible for a pecuniary penalty if that other person:

“(c)     has aided, abetted, counselled or procured a person to contravene such a provision; 
…
(e)       has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision”.

Both contraventions require the secondary participation to be intentional, which is to say that the person concerned knew what the other party was doing and the knowledge extended to the essential elements of the offence:  Yorke & Anor v Lucas (1985) 158 CLR 661, 667, 670; Giorgianni v The Queen (1985) 156 CLR 473, 505 although they may not have appreciated that there was constituted a particular contravention: Yorke & Anor  v Lucas, 670.

It is convenient, in the first place, to deal with the first respondent Mr Le Court who features most prominently.  In doing so, I shall refer to the paragraph numbers, relating to the separation contraventions, in my earlier reasons. 

Mr Le Court

1. There can be no doubt that Mr Le Court was himself a party to, and knowingly concerned in, the contravention of s 96(3)(b) of attempting to induce Price Attack franchisees to maintain price by reason of what was said at the May 1992 meeting.

1. Similar conclusions must be reached in connexion with the letter of 24 November 1992 written by Mr Le Court. 

1. So far as concerns the letters of June and July 1995, Mr Le Court was directly concerned in and a party to a contravention of s 96(3)(d).

The remaining questions concern Mr Le Court’s liability insofar as he may be said to have counselled or procured the other individual contraventions.  In each case the Commission relies upon discussions which took place between Mr Le Court, those in charge of Mayo International and its sales managers and representatives, to the effect that discounting was to be discouraged and that maintenance of Mayo International’s listed price was to be encouraged and that they ought to report any instances of discounting to those in control of Mayo International.  This is in the background of the arrangement made between Mr Le Court and Mr Jackson of Price Attack and is confirmed by the steps ultimately taken in June and July 1995. 

Mr Le Court was not present on any of the occasions I shall shortly deal with.  It can however be concluded that he both knew and encouraged the taking of action consistent with the overall objective that Mayo International’s listed price be maintained by Price Attack franchisees and other customers.  It is not necessary for a party to a contravention to be physically present when the contravention occurs, so long as they can be shown to know what was contemplated and approve or encourage it.  That person’s knowledge, coupled with their actions, involve them in complicity and render them an accessory before the fact:  Terrance Stanley Johns v The Queen (1980) 143 CLR 108, 118; Regina v Bainbridge [1960] 1 QB 129; R v Ancuta [1991] 2 Qd R 413. So far as concerns the extent of knowledge, it is not sufficient to show knowledge only of some illegal venture. There must be shown knowledge of the type of events contemplated: Bainbridge 132-3 and Ancuta, 417-8. With these observations I turn to the other contraventions.

It has been established, in my view, that Mr Le Court knew that there would be attempts made to induce the maintenance of price and that the actions taken, with respect to the following contraventions, were within the scope of that purpose: [4] [5] [7] [8] [10] [11] [13] [14] [15] [16] and [17]. Although the point has not been taken in submissions before me, the statements made to Ms de Vries were more strongly stated than others, perhaps because the sales representative, Ms Shaw, found herself in a difficult position when challenged. It is to be expected that sales representatives acting in furtherance of Mayo International’s objectives would have to deal with different circumstances which arise (see Johns 118-9) and I do not think it could be said that she has acted outside the scope of that purpose, such that Mr Le Court could not be held to account for his part in it.

Mr Thom

The case brought against Mr Thom involved only the part he played in the conduct in connexion with Mr de Candia, Mr Balmer and Mr Cameron.  No contraventions as alleged in the statement of claim were made out on the evidence.  The Commission’s final submissions, received on 5 August, acknowledge this and it does not now suggest that other findings of complicity are appropriate, save for one.  It submits that the part Mr Thom played in the decision to withdraw was the subject of some attention at trial.  I am not satisfied that the trial was conducted on the basis that penalties were to be sought against him on that basis.  No amendment was sought by the Commission to make that clear and no submissions were directed specifically to it until those by way of reply.  I do not consider it appropriate to allow the Commission to now widen its claims against him.

Ms Shaw
Ms Shaw was directly concerned in and a party to the contraventions [7] and [8].

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel

Associate:

Dated:             7 August 1998

Counsel for the Applicant:	Mr P O’Shea
Solicitor for the Applicant:	Corrs Chambers Westgarth
Counsel for the Respondents:	Mr R Hanson QC with him Mr L Bowden
Solicitor for the Respondents:	Bowdens Lawyers
Date of Hearing:	10, 11, 12, 13, 16, 17, 18, 20, 23, 24 February 1998
Date of Judgment:	7 August 1998