Meyer Heine Pty Ltd v China Navigation Co Ltd

HIGH COURT OF AUSTRALIA

McTiernan, Kitto, Taylor, Menzies and Windeyer JJ.

MEYER HEINE PTY. LTD. v. CHINA NAVIGATION CO. LTD.

(1966) 115 CLR 10

3 March 1966

Restraint of Trade

Restraint of Trade—Prohibition of contracts, combinations etc. in restraint of trade with other countries or among the States—Right of action of person injured—Treble damages—Statutes—Extra-territorial operation—Whether prohibition extends to acts done outside Australia—Acts lawful where done—Monopoly—Whether must be pernicious or harmful—Contract or combination in restraint of trade—Reasonableness of restraint or absence of detriment—Whether burden of proof on plaintiff or defendant—Pleading—Statement of claim—Damage—Whether mere entering into contract can cause damage—Company—Whether damage suffered by acts before incorporation—Right to recover damages from some only of persons in combination—Australian Industries Preservation Act 1906-1950 (Cth), ss. 3, 4*, 7, 7A, 9*, 11*—High Court Rules, 0. 20, r. 27.*

Decisions

1966, March 3.
The following written judgments were delivered:-
McTIERNAN J. I agree in the judgment and reasons of my brother Kitto and in the order which he proposes. (at p20)

KITTO J. This matter comes before the Full Court on a series of demurrers by the defendants to parts of the statement of claim, and a series of demurrers by the plaintiff to parts of the defence, in an action pending in this Court for treble damages under s. 11 of the Australian Industries Preservation Act 1906-1950 (Cth). The statement of claim alleges that until 8th July 1964 the plaintiff carried on the business of a shipping line, carrying goods for reward by sea from Australia to other countries including Japan, and from other countries including Japan and Hong Kong to Australia. The defendants, it is alleged, carried on business in competition with the plaintiff, but unlike the plaintiff they were members of a group of companies, known at one time as the Australian-Eastern Shipping Conference and more recently as the Australian and New Zealand - Eastern Shipping Conference, who carried substantially all the wool shipped from Australia to Japan, and substantially all the general cargo from Japan and Hong Kong to Australia. The Conference was governed at all material times by an agreement made in Sydney on 23rd May 1961. The statement of claim sets out some of the terms of this agreement, alleges conduct of the defendants and others in compliance with it, and puts forward the conclusion that by reason of matters alleged the Conference is a commercial trust within the meaning of the abovementioned Act. Then there follow allegations of the making of agreements of three classes between members of the Conference, including the defendants, and individual shippers. The first class consists of agreements with the shippers of all or practically all of the goods shipped at relevant times by sea from Japan to Australia; the second consists of agreements with the shippers of all or practically all of the goods shipped at relevant times by sea from Hong Kong to Australia; and the third consists of agreements with the importers and/or spinners in Japan of all or practically all of…