Fairbairn v NCC Fashions Wholesale Pty Ltd

[2005] FCA 1874

FEDERAL COURT OF AUSTRALIA

Fairbairn v NCC Fashions Wholesale Pty Ltd [2005] FCA 1874

KAY MARIE FAIRBAIRN v NCC FASHIONS WHOLESALE PTY LIMITED

NSD 2460 of 2005

WILCOX J
15 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2460 of 2005

BETWEEN:	KAY MARIE FAIRBAIRN APPLICANT
AND:	NCC FASHIONS WHOLESALE PTY LIMITED RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	15 DECEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1           On the usual undertaking as to damages given by the applicant through her counsel, the Court orders that, until further order, the respondent:

(a)not engage in the practice of resale price maintenance;  and

(b)in particular, not withhold the supply of goods to the applicant for the reason that the applicant:

(i)has not agreed not to sell those goods at prices less than the prices charged by Hot Skies and Internet Clothing, or either of them; or

(ii)is likely to sell those goods at prices less than the prices charged by Hot Skies and Internet Clothing, or either of them;

2.Costs of this application are the applicant's costs in the principal proceeding;

3.Liberty to apply on such notice as a judge regards as sufficient.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2460 of 2005

BETWEEN:	KAY MARIE FAIRBAIRN APPLICANT
AND:	NCC FASHIONS WHOLESALE PTY LIMITED RESPONDENT

JUDGE:	WILCOX J
DATE:	15 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This matter came before me last Tuesday as duty judge. The applicant sought interlocutory orders, pursuant to s 80 of the Trade Practices Act 1974 (Cth) (‘the Act’), in respect of acts of the respondent that were said to constitute resale price maintenance, within the description of that conduct which is contained in s 96 of the Act.

2. On Tuesday, the respondent did not appear.  There was a problem in relation to service.  The person who served the process had accepted a redirection from the registered office of the respondent, so as to take the documents to a nearby office that may have had a greater association with the respondent company, but which was not its registered office.

3. I thought it was essential, if I was to grant injunctive relief in the absence of the respondent, to have before me evidence of proper service of the originating process and supporting affidavits.  Accordingly, I stood the matter over until this afternoon, with a direction that the documents be re-served at the registered office of the company within a particular period of time, to be accompanied by a letter advising the respondent of the date and time of the hearing of the Notice of Motion.  This was done.  The evidence was supplemented by a further affidavit of the applicant, which also was served upon the respondent at its registered office.

4. Notwithstanding the re-service, the respondent has not appeared today.  So I have considered the matter on an ex parte basis.  The applicant, through her counsel, has given the usual undertaking as to damages.

5. The main question in my mind, regarding the merits of the application for interlocutory relief, is whether the evidence supports a finding, on an interim basis, that the respondent specified a resale price. The word ‘specified’ is used in many of the paragraphs in s 96(3) of the Act, which list acts constituting resale price maintenance. The word ‘specified’ is not defined by the Act, but guidance is given to its meaning, in the present context, by a decision of Lockhart J, Trade Practices Commission v Bata Shoe Company of Australia Pty Limited (No 2) (1980) 44 FLR 149. In that case, the respondent company had not specified a resale price in dollar terms. However, it had caused Woolworths Limited to understand that supply was being withheld from it because it was not prepared to resell the goods, ‘somewhere near the selling price of Gowings Ltd in Sydney’. Lockhart J held this constituted a specification of price within the meaning of s 96.

6. I am content to follow his Honour’s view.  It is applicable to the present case.  There is evidence that a person identified only as ‘Rachel’, who seems to be the principal of the respondent company, told the applicant that she had received complaints from other customers that the applicant was selling the respondent’s Minkpink brand goods, in markets, at prices less than those charged in the complainants’ shops.  Rachel named two customers, in particular:  Hot Skies and Internet Clothing.

7. The relevant conversations are set out in the applicant's affidavit.  Her account of these conversations is substantially corroborated by an affidavit of her daughter, Skye Michelle Fairbairn.  There is no contradictory evidence.

8. The impression I gained from the affidavits is that Rachel would have been happy to deal with the applicant, but for the complaints she had received from Hot Skies and Internet Clothing. However, whatever her own reluctance, this is precisely the mischief at which ss 48 and 96 of the Act are directed. On the basis of the evidence that is so far available, the case seems to be similar to Bata Shoes. Accordingly, I think that it is appropriate to grant interlocutory relief. The relief should be framed in terms of the legislation.

9. The orders that I propose to make are as follows:

   1.On the usual undertaking as to damages given by the applicant through her counsel, the Court orders that, until further order, the respondent:

   (a)       not engage in the practice of resale price maintenance;  and

   (b)in particular not withhold the supply of goods to the applicant for the reason that the applicant:

   (i)has not agreed not to sell those goods at prices less than the prices charged by Hot Skies and Internet Clothing, or either of them; or

   (ii)is likely to sell those goods less than the prices charged by Hot Skies and Internet Clothing, or either of them;

   2.Costs of this application are the applicant's costs in the principal proceeding;

   3.Liberty to apply on such notice as a judge regards as sufficient.

10. I will direct the Registrar that this matter be allocated to a docket judge without further delay.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             20 December 2005

Counsel for the Applicant:	Mr J M Patey
Solicitor for the Applicant:	Martin Legal
There was no appearance  for the Respondent:
Date of Hearing:	15 December 2005
Date of Judgment:	15 December 2005