Mayne Nickless Ltd v Multigroup Distribution Services Pty Ltd

Case [2001] FCA 1620

FEDERAL COURT OF AUSTRALIA

Mayne Nickless Limited  v Multigroup Distribution Services Pty Limited
 [2001] FCA 1620

TRADE PRACTICES - remedies - damages - time limitations - anti-competitive conduct - claim for injunctive relief under s 80 Trade Practices Act 1974 (Cth) - claim for damages under s 87(1) Trade Practices Act - whether claim for damages time barred - construction of s 87(1) - leave to appeal - criteria.

Trade Practices Act 1974 (Cth) s 80, s 82, s 87

Trade Practices Legislation Amendment Act 1992 (No 222 of 1992), Schedule 1
Trade Practices Amendment (Fair Trading) Act 1998 (No 36 of 1998).

Sent v Jet Corporation of Australia Pty Ltd (1986) 160 CLR 540 cited
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 cited
Johnson Tiles Pty Ltd v Esso Australia Ltd (2001) 104 FCR 564 cited
Ex parte Bucknell (1936) 56 CLR 221 cited
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited
Minogue v Williams [2000] FCA 125 cited
Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2001] FCA 703 cited
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514 cited
Trade Practices Commission v Milreis Pty Ltd (1977) 29 FLR 144 cited
Fenech v Sterling (1984) 4 FCR 372 cited
McKain v RW Miller & Company (South Australia) Pty Ltd (1991) 174 CLR 1 cited
Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 cited
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 cited
Rudolphy v Lightfoot (1999) 197 CLR 500 cited
Nirmalan v Minister for Immigration and Multicultural Affairs [1998] FCA 672 cited
Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269 cited
Re La Rosa; Ex parte Norgard v Rodpat Nominees Pty Ltd (1991) 31 FCR 83 cited
Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535 cited
Bialkower v Acohs Pty Ltd (1998) 83 FCR 1 cited
Commonwealth v Mewett (1995) 59 FCR 391 cited

MAYNE NICKLESS LIMITED v MULTIGROUP DISTRIBUTION SERVICES PTY LIMITED, TNT AUSTRALIA PTY LIMITED, ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PROPRIETARY LIMITED and J McPHEE & SON (AUSTRALIA) PTY LTD
NG 786 OF 1995

WILCOX, FRENCH and DRUMMOND JJ
16 NOVEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG786 OF 1995

BETWEEN:

MAYNE NICKLESS LIMITED
(ACN 004 073 410)
APPELLANT

AND:

MULTIGROUP DISTRIBUTION
SERVICES PTY LIMITED
(ACN 001 227 890)
FIRST RESPONDENT

TNT AUSTRALIA PTY LIMITED
(ACN 000 495 269)
SECOND RESPONDENT

ANSETT TRANSPORT INDUSTRIES
 (OPERATIONS) PROPRIETARY LIMITED
 (ACN 004 209 410)
THIRD RESPONDENT

J McPHEE & SON (AUSTRALIA) PTY LTD
 (ACN 001 856 111)
FOURTH RESPONDENT

JUDGE:

WILCOX, FRENCH and DRUMMOND JJ

DATE OF ORDER:

 16 NOVEMBER 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The Appellant have leave to appeal.

2.        The appeal be dismissed.

3.        The Appellant pay the First Respondent's costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order…

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Details
AGLC
Mayne Nickless Ltd v Multigroup Distribution Services Pty Ltd [2001] FCA 1620
Case
[2001] FCA 1620
Decision Date

CaseChat Overview and Summary

Mayne Nickless Ltd brought an action against Multigroup Distribution Services Pty Ltd in the Supreme Court of South Australia, initially seeking damages and an account of profits, with the claim for injunctive relief added later. The plaintiff alleged breaches of the Trade Practices Act 1974 (Cth) and sought relief under various sections of that Act. The primary judge found that the claim for injunctive relief was based on section 80, and the claim for damages under section 82 had partly transitioned to a claim for damages under sections 87(1) and 87(2)(d). The plaintiff sought to appeal the judge's determination on the nature of the claim and whether damages should be awarded under section 87(2)(d).

The court needed to determine whether the plaintiff's claim should be treated as one brought under section 87(1) of the Trade Practices Act, and if so, whether damages should be awarded under section 87(2)(d) if the contraventions and losses were proven. The court found that the claim's character had changed, but this did not affect the correctness of the judge's decision regarding the nature of the claim. The court held that the claim was correctly treated as brought under section 87(1), and the judge's determination was affirmed. The court also found that the judge's decision on the award of damages was correctly made in the exercise of discretion.

The court concluded that the appeal should be dismissed because the primary judge correctly identified the nature of the claim and exercised his discretion appropriately in determining the award of damages. The plaintiff was ordered to pay the costs of the appeal to the respondent.

ORDERS:
1. The Appellant has leave to appeal.
2. The appeal is dismissed.
3. The Appellant pays the First Respondent's costs of the appeal.

Orders

Orders of the court

1. The Appellant have leave to appeal.

2. The appeal be dismissed.

3. The Appellant pay the First Respondent's costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

These proceedings began their life in 1995 in the Supreme Court of South Australia with a claim for damages and an account of profits. They maintained that character following amendment in 1996. The claim for injunctive relief was introduced in February 1997. Plainly, the claim in its original form was for damages under s 82 and for other relief. The claim for injunctive orders was seen by the learned primary judge as "… obviously based on s 80". The consequence of its introduction appears to have been that the claim for damages previously relying on s 82 has assumed (at least partly) the character of a claim for damages relying on s 87(1), read with s 87(2)(d). That change in character may have some relevance to the question whether, as a matter of discretion, damages should be awarded under s 87(2)(d) if the relevant contraventions and losses are established. It does not negate, however, the correctness of his Honour's answer to the first preliminary question as reformulated. The question is widely expressed to refer to "…the applicant's claim for orders under s 87(1) of this Act." The only relevant claim is that for damages. There was no contention that the claim should not be treated as brought under s 87(1). Conclusion His Honour was correct in the answer he provided to the reformulated question. Accordingly, the appeal should be dismissed with costs.

Ratio Decidendi

Legal Principle Established

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