Australian Competition and Consumer Commission v Trading Post Australia Pty Ltd
[2010] FCA 262
FEDERAL COURT OF AUSTRALIA
Australian Competition & Consumer Commission v Trading Post Australia Pty Ltd [2010] FCA 262
Citation: Australian Competition & Consumer Commission v Trading Post Australia Pty Ltd [2010] FCA 262 Parties: AUSTRALIAN COMPETITION & CONSUMER COMMISSION v TRADING POST AUSTRALIA PTY LIMITED and GOOGLE INC File number: NSD 1323 of 2007 Judge: NICHOLAS J Date of judgment: 17 March 2010 Legislation: Trade Practices Act 1974 (Cth) s 52 Date of hearing: 16-17 March 2010 Date of last submissions: 17 March 2010 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 6 Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Applicant: CE Adamson SC & AM Seward Solicitor for the Second Respondent: Gilbert & Tobin Counsel for the Second Respondent: AJL Bannon SC & C Dimitriadis
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1323 of 2007
BETWEEN: AUSTRALIAN COMPETITION & CONSUMER COMMISSION
ApplicantAND: TRADING POST AUSTRALIA PTY LIMITED
(ACN 001 821 156)
First RespondentGOOGLE INC
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
17 MARCH 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The applicant is granted leave to amend the Second Further Amended Application to include the additional claims for injunctive relief set out in the document marked MFI-2.
2.The costs occasioned by the amendment are reserved.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1323 of 2007
BETWEEN: AUSTRALIAN COMPETITION & CONSUMER COMMISSION
ApplicantAND: TRADING POST AUSTRALIA PTY LIMITED
(ACN 001 821 156)
First RespondentGOOGLE INC
Second Respondent
JUDGE:
NICHOLAS J
DATE:
17 MARCH 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicant has applied for leave to amend its application by including additional claims for injunctive relief against the second respondent, Google Inc. The proposed amendment is set out in the document marked MFI-2. The application to amend is made during the course of the final hearing of a proceeding with a long history in which the state of the pleadings filed by the applicant has been the subject of much debate. The form of the injunctive relief the applicant now wishes to claim is of a quite different character to the injunctive relief presently claimed. The proposed amendment is opposed by the second respondent on three grounds.
First, it is submitted by the second respondent that the Court would never grant any of the injunctions now sought, because they are beyond power or, at least, not in a form which the Court would ever make if the Court’s discretion to grant injunctive relief was exercised in accordance with settled principles. I am not prepared to reject the application for amendment on that basis. The orders sought are unusual and may be shown by evidence and argument to be inappropriate, even if the contraventions of s 52 of the Trade Practices Act 1974 (Cth) alleged against the second respondent are made out. But these are matters best dealt with in final address.
Secondly, it is submitted that the proposed injunctions lack clarity. I think the criticisms of the proposed orders on this basis are somewhat overstated. In any event the clarity of the proposed orders is also a matter best dealt with in final address.
Thirdly, it is submitted that the proposed amendment, if allowed, will require the second respondent to call further evidence from witnesses who it had not previously proposed to call and who reside overseas. For the purpose of this application I accept that this is so. It is common ground that the proposed injunctions, if made, would require the second respondent to make some basic changes to the way in which it processes and manages advertising in the form of “sponsored links” which appear on web pages called up in response to searches undertaken by users of the second respondent’s search engine. For example, proposed order 8 provides:
Google Inc. be restrained, whether by itself, its servants or agents or any of them or otherwise howsoever, from publishing or displaying advertisements (whether described as sponsored links or otherwise) on its website at where the headline of such advertisements comprises a business, product or internet domain name which is not a business, product or internet domain name of the advertiser, unless, prior to the publication of any such advertisements, Google Inc has obtained from the advertiser a written certification (which may be in electronic form) separate from the AdWords terms and conditions which:
(a)names a person, authorised by the advertiser, the nature of whose relationship with the advertiser is identified;
(b)certifies that such person has reviewed the list of keywords; and
(c)certifies that the advertisements, if published, would not imply that, contrary to the fact, there is an association, affiliation, partnership or any special relationship between the words comprising the headline of the advertisement and the advertiser or its products or internet domain names.
Apart from anything else, the second respondent is entitled to call evidence on the question of whether or not it would be able to comply with such an order, and if so, what the ramifications of it being required to do so might be. Issues of proportionality are likely to arise that may need to be explored in evidence if the court is otherwise persuaded that injunctive relief is appropriate. The applicant has indicated it does not wish to rely on any additional evidence‑in‑chief beyond what it has already read and tendered in support of the proposed orders. Further, I have indicated to the parties that all other issues concerning the form and scope of the proposed orders are to be addressed during final submissions, which are expected to take place at the conclusion of the current hearing.
Whether or not there need be a further hearing to enable the respondent to call evidence of the kind I have described will depend upon the resolution of those issues. I propose to allow the amendment but on terms that in the event the Court is persuaded that it is otherwise appropriate to grant injunctive relief in the form, or substantially in the form, now sought, the second respondent will be given the opportunity to call evidence directed to the question of whether or not it would be able to comply with such an order and, if so, what the ramifications of it being required to do so might be. I propose to reserve the question of costs occasioned by the amendment. The costs involved in what might be a further hearing involving evidence from witnesses from overseas may be considerable. I will hear any argument about costs if and when it becomes clear that a further hearing is required.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 22 March 2010
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