The Australian Competition & Consumer Commission v Ampol Petroleum (Vic) Pty Ltd
[1996] FCA 355
•17 May 1996
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG873 of 1995
GENERAL DIVISION )
BETWEEN:THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant
AND: AMPOL PETROLEUM (VICTORIA) PTY. LTD., BEST OIL COMPANY PTY. LTD., KENNETH McKAY and MICHAEL DANIELLI
Respondent
CORAM: Jenkinson J.
PLACE: Melbourne
DATE: 17 May, 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The Respondent Best Oil Company Pty. Ltd. pay within 30 days to the Commonwealth of Australia in respect of the contraventions of Part IV of the Trade Practices Act 1974 which are specified in the amended statement of claim filed 12 February 1996 in paragraphs 16 and 26 thereof pecuniary penalties in the aggregate of $175,000.
The Respondent Michael Danielli pay within 60 days to the Commonwealth of Australia in respect of the contraventions of Part IV of the Trade Practices Act 1974 which were constituted by his having been party to the contraventions specified in the order contained in paragraph 1 of this order pecuniary penalties in the aggregate of $40,000.
The respondent Best Oil Company Pty. Ltd. be restrained for the period of 5 years from this day from making a contract or arrangement or arriving at an understanding a provision of which contract or arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition in a way which would constitute the making of the contract or
arrangement or the arriving at the understanding a contravention of sub-paragraph 45(2)(a)(ii) of the Trade Practices Act 1974.
The respondent Michael Danielli be restrained for the period of 5 years from this day from being party to the making by a corporation of a contract or arrangement or the arriving by a corporation at an understanding of the description expressed in the order contained in paragraph 3 of this order.
The respondent Best Oil Company Pty. Ltd. be restrained for the period of 5 years from this day from giving effect to a provision, of a contract or arrangement made by a corporation or of an understanding arrived at by a corporation, which has the purpose, or is likely to have the effect, of substantially lessening competition in a way which would constitute the giving effect to that provision a contravention of sub-paragraph 45(2)(b)(ii) of the Trade Practices Act 1974.
The respondent Michael Danielli be restrained for a period of 5 years from this day from being party to the giving of effect to a provision of a description expressed in the order contained in paragraph 5 of this order.
Each document read on the hearing of the proceeding to and including this day be filed.
Every person who is not a party to the proceeding have leave to search in the Registry for, and to inspect, each document filed in the proceeding on or before this day.
(Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules)
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG873 of 1995
GENERAL DIVISION )
BETWEEN:THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant
AND: AMPOL PETROLEUM (VICTORIA) PTY. LTD., BEST OIL COMPANY PTY. LTD., KENNETH McKAY and MICHAEL DANIELLI
Respondent
CORAM: Jenkinson J.
PLACE: Melbourne
DATE: 17 May, 1996
REASONS FOR JUDGMENT
Further trial of proceedings in respect of contraventions of section 45 of the Trade Practices Act 1975.
On 12 March 1996 trial of the proceeding as against Ampol Petroleum (Victoria) Pty. Ltd. ("Ampol") and Kenneth McKay concluded after those respondents had in amended defences admitted the allegations in an amended statement of claim and by their counsel had joined in submissions by counsel for the applicant as to the appropriate orders to be made in respect of the admitted contraventions. Reasons for the making of the orders pronounced on that day were published that day. Thereafter trial of the proceeding as against Best Oil Company Pty. Ltd. ("Best Oil") was had. That respondent admitted the allegations against it in an amended statement of claim and by its counsel joined in submissions by counsel for the applicant as to the appropriate orders to be made in respect of its admitted contraventions. The contravention of s.45(2)(a)(ii) which Ampol admitted was the making of an arrangement or understanding with Best Oil, of a description specified in that sub-paragraph. And that was the contravention the commission of which Best Oil later admitted. I refer to, but need not here repeat, what appears in my reasons for judgment on 12 March 1996. The other contravention admitted by Best Oil is of s.45(2)(b)(ii), constituted by its having given effect to the arrangement or understanding which it had made with Ampol. Like Ampol's representative in the Doveton area, Best Oil's manager of the retail petrol station which Best Oil conducted at Doveton, the fourth respondent Michael Danielli, requested directors of Marchurch Pty. Ltd. on several occasions to alter that company's retail price for petroleum products, and thereby Best Oil gave effect to the agreement or understanding. None of the requests was alleged to have resulted from direction by officers of Best Oil to Danielli.
Best Oil is a company of modest income and resources, which agreed shortly after the institution of the proceeding to admit the contraventions and to use its best endeavours to ensure future compliance with the laws found in Part IV of the Trade Practices Act. The parties propose to the court that pecuniary penalties in the aggregate of $175,000 be ordered in respect of Best Oil's contraventions of s.45(2)(a)(ii) and s.45(2)(b)(ii). In all the circumstances I consider those penalties to be appropriate. Among the circumstances taken into account is Best Oil's submission to an injunctive order restraining it for 5 years from committing any such contraventions.
Thereafter trial was had of the proceeding as against the fourth respondent Mr. Danielli, who admitted that he had been party to the contraventions committed by Best Oil. Pecuniary penalties aggregating $40,000 and the making of an injunctive order restraining him for 5 years from being party to any such contraventions were proposed by the parties. In all the circumstances I consider the penalties and the injunctive order to be appropriate.
I certify that this and the 2 preceding pages are a true copy of the Reasons for Judgment of Mr. Justice Jenkinson.
Associate
Dated: 17 May, 1996
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