Trade Practices Commission v Amatek Ltd

[1994] FCA 941

?+I

JUDGMENT No. ........ ........ . J .. ........ ..

JN THE FEDERAL COURT OF AUSTRALIA	)
j

FEW SOUTH WALES DISTRICT REGISTRY ) No. G810 of 1994

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GENERAL DIVISION 1

BETWEEN : TRADE PRACTICES COMMISSION

Applicant

AND :

AMATEK LIMITED (TRADING AS ROCLA

CONCRETE)

Respondent

24 NOVEMBER 1994 RECEIVED

- 6 DEC 1994

REASONS FOR JUDG FEDERAL WURT OF

AUSTRALIA

PRINCIPAL

LOCKHART J. REQISTRV

This is a proceeding instituted in the Court by the Trade

Practices Commission for recovery of pecuniary penalties pursuant to S. 76 of the Trade Practices Act 1974 (the Act) and for injunctive relief. The proceedings relate to alleged contraventions by Amatek Limited, trading as Rocla Concrete

(Amatek), of ss. 45(2) (a) (ii) and 45(2) (b) (ii) of the Act.

The proceedings against the personal respondent, Mr Buchanan, are brought on the basis that he was directly or indirectly knowingly concerned or in or a party to the conduct which gave rise to the alleged contraventions by Amatek.

The relevant principles governing the imposition of

penalties for contraventions of this kind are referred to in a

number of judgments in this court including Trade Practices

Commission v Bata Shoe CO of Australia Pty Limited [l9801 ATPR

4 0-162 ; Trade Practices Commission v Sony (Australia) Pty

Limited [l9901 ATPR 41-053; and Trade Practices Commission v

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CSR Limited [l9911 ATPR 41-076.

The respondents and the Cbmmission have been engaged in

discussions for some time, which have resulted in the parties

reaching agreement as to the disposition of the proceedings.

They realize that it is for the Court to determine whether

contraventions have occurred, and dn particular what the

appropriate penalty should be, or what other relief should be

granted. They have agreed, subject to the Court's

concurrence, that Amatek has contravened the Act as alleged by

the Commission and that Mr Buchanan has been involved in those

contraventions within the meaning of S. 758 of the Act. They

have also agreed, again subject to the Court's concurrence,

what the appropriate penalties should be, and that undertaking

should be accepted by the Court in lieu of injunctions.

The approach to be adopted in these circumstances has

been considered by judges of this Court and by the High Court

of New Zealand. The principal judgment in Australia is that

of Sheppard J in Trade Practices Commission v Allied Mills

Industries Pty Limited (1982) 60 FLR 38, in particular at 41.

In Colliers Commission v New Zealand Milk Corporation Limited,

the High Court of New Zealand constituted by the Chief Justice

and Gregg J, on 28 April 1994, agreed with that particular

passage, which I do not find it necessary to recite, from the

judgment of Sheppard J and added some obser-rations of their

own which occur at page 5 of the judgment (unreported).

The same approach was adopted by Sheppard J in the later

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case of Trade Practices Commission v Axide Pty Limited, by

Burchett J in Trade Practices Commission v TNT Australia

Limited (10 August 1994, unregprted), by myself in Trade

Practices Commission v Hymix Industries Pty Limited (25 August

1994, unreported) and by Lee J in Trade Practices Commission v

Simsmetal Limited (9 November 1994, unreported). I agree with

what has been said by the judges of this Court and the High

Court of New Zealand in these cases.

The facts of this case need not be recited, they have

been sufficiently opened to me by counsel for the Commission made over a substantial period of time, the very nature of which denies the essential components of competition, the preservation of which is the primary function of the Act.

and counsel for the respondents and they appear from the

affidavit of Mr Buchanan, which has been filed. The facts as

disclosed do give rise to serious contraventions of the act.

I do not think it useful to say whether the penalties,

upon which the parties have agreed, are penalties which this imposed. It is possible that the Court would have imposed

higher penalties, but I prefer to make no further observation about that. It seems to me that the agreement which has been reached is one which reflects, broadly and substantially, the approach which I would have taken in any event.

I also take into account the fact that the respondents

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have been fully co-operative with the Commission in this

matter and I understand that a compliance programme has been,

and still is, the subject of d-iscussion between the parties.

I also take into account that in the relevant industry,

which is the supply of pre-mixed concrete in the Brisbane metropolitan area and Logan areas,. that Amatek is a minor player. Amatek holds less that 5 per cent of the market

share. In all the circumstances, subject to one matter to

which I shall refer briefly, the appropriate orders in my

opinion are those that have been the subject of agreement.

The Court accepts the undertakings to the Court and

mentioned in paragraphs 3 and 4 of the short minutes of order,

initialled by me, dated today and placed with the papers. The

Court makes orders (l), (2) and (5) as set out in those short

minutes. In addition the Court orders that Amatek Limited

implement a programme of compliance to the Act to be agreed

between itself and the Commission, or failing such agreement,

as determined by the Court. The Court grants liberty to apply,

to any party in relation to the compliance programme on seven

days' notice.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

ssociate: PUC,

Dated: 24 November 1994

Counsel for the Applicant

Mr G. Brandis

Solicitors for the Applicant

Australian Government

Solicitor

Counsel for the Respondent

Mr C. Sweeney QC

Solicitors for the Respondent

Clayton Utz

Date of Hearing

24 November 1994

Date of Judgment

24 November 1994