Official Trustee in Bankruptcy v Mitchell - [1992] FCA 521

Re: TRADE PRACTICES COMMISSION
And: SERVICE STATION ASSOCIATION LIMITED; JOHN ALICK LANGLEY and BRIAN ERNEST
MARK
No. N G616 of 1991
FED No. 521
Trade Practices
(1992) 14 ATPR 41-179

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Heerey J.(1)

CATCHWORDS

Trade Practices - alleged arrangement or understanding to fix, control or maintain prices - ss.45(2)(a)(ii) and 45A(1) Trade Practices Act 1974 (Cth) - trade association of service station proprietors - campaign to increase retail margins - recommended retail prices - whether arrangement or understanding between proprietors to fix, control or maintain prices - whether sufficient certainty as to prices - whether mutual expectation as to each other's acting - whether in fact arrangement or understanding existed - evidence of prices actually charged - inducement - s.76(1)(d) - whether intent necessary - relevance of natural probable and inevitable consequence of respondent's conduct - whether in fact intent - whether attempt to induce.

Trade Practices Act 1974 (Cth): Ss.45(2)(a)(ii), 45A(1) and 76(1)(d).

Petroleum Retail Marketing Sites Act 1980 (Cth)

Earl of Mexborough v Whitwood Urban District Council (1987) 2 QB 111

Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216

Murphy v Farmer (1988) 165 CLR 19

Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328

Ranoa Pty Ltd v BP Oil Distribution Ltd (1989) 91 ALR 251

Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FLR 168

Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 40 FCR 83

Vallance v The Queen (1961) 108 CLR 56

Yorke v Lucas (1985) 158 CLR 661

Trade Practices Commission v Service Station Association Ltd, John Alick Langley and Brian Ernest Mark (NG 616 of 1991)

HEARING

SYDNEY

#DATE 24:7:1992

Solicitor for the applicant: Australian Government Solicitor

Counsel for the applicant: Mr J.D. Heydon QC with Mr C.P. Comans

Solicitors for the respondents: Mallesons Stephen Jacques

Counsel for the respondents: Mr B.C. Oslington QC with Mr C.C. Hodgekiss

ORDER

IT IS ORDERED THAT:-

1. The application be dismissed with costs, including reserved costs.

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

JUDGE1

I Introduction

The applicant Trade Practices Commission (TPC) brings this claim under Part IV of the Trade Practices Act 1974 (the Act) against the first respondent Service Station Association Limited (SSA), its President John Alick Langley (Mr Langley) and Executive Officer Brian Ernest Mark (Mr Mark) who are respectively the second and third respondents.

The precise nature of the contravention alleged will need to be examined in a little more detail. At the moment it suffices to say that the TPC claims that in the latter half of 1990 petrol retailers in the Sydney metropolitan area made an arrangement or arrived at an understanding with each other and with the SSA to fix, control or maintain retail petrol prices, contrary to s.45(2)(a)(ii) and s.45A(1) of the Act, and that the SSA, Mr Langley and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1992] FCA 521
Decision Date: 24 JULY 1992

CaseChat Overview and Summary

The Official Trustee in Bankruptcy filed an application against Mitchell in relation to an alleged arrangement or understanding among service station proprietors to fix, control, or maintain prices. The dispute was heard and determined by the Federal Court of Australia. The court was tasked with deciding several key legal issues, including whether there was an arrangement or understanding among the proprietors to fix, control, or maintain prices, whether there was sufficient certainty as to the prices, whether there was a mutual expectation among the proprietors that each would act in a certain way, and whether an actual arrangement or understanding existed. Additionally, the court considered whether there was intent to induce and whether the natural probable and inevitable consequence of the respondent's conduct was relevant.

The court found that the evidence did not demonstrate an arrangement or understanding among the proprietors to fix, control, or maintain prices. There was insufficient certainty as to the prices, and there was no mutual expectation among the proprietors that each would act in a certain way. The court also found that there was no actual arrangement or understanding among the proprietors. The evidence of the prices actually charged did not support an inference of an arrangement or understanding. The court held that an intent to induce was not necessary and that the natural probable and inevitable consequence of the respondent's conduct was relevant. However, the evidence did not establish that the respondent intended to induce the alleged arrangement or understanding.

Based on the court's findings, it was ordered that the application be dismissed with costs, including reserved costs. The settlement and entry of orders were dealt with in accordance with Order 36 of the Federal Court Rules. This decision highlights the importance of establishing the existence of an arrangement or understanding among traders to fix, control, or maintain prices and the need for sufficient evidence to support such claims.

Orders

Orders of the court

IT IS ORDERED THAT:-

1. The application be dismissed with costs, including reserved costs.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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