Trade Practices Commission v Culley, Frank Thomas

Re: TRADE PRACTICES COMMISSION
And: FRANK THOMAS CULLEY
And: KEITH JAMES GREENWELL
WA No. G 19 of 1983
Restrictive Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Morling J.

CATCHWORDS

Restrictive Trade Practices - attempt to fix prices - retail sale of petrol - severe discounting - attempt not successful - ignorance that conduct infringed Act - factors relevant to determination of penalty

Trade Practices Act 1974, ss. 45(2)(a) and 76(1)

HEARING

PERTH

#DATE 11:10:1983

ORDER

1. The respondents each pay to the Commonwealth of Australia a pecuniary penalty of $500 in respect of the matters alleged against them in paragraph 8 of the Statement of Claim.

2. The respondents each pay to the applicant one half of its costs of the application, to be taxed as one set of costs.

JUDGE1

In these proceedings the Trade Practices Commission seeks the imposition upon the respondent of pecuniary penalties in respect of alleged breaches of s.45(2)(a)(ii) of the Trade Practices Act 1974 ("the Act"). The respondents do not deny that they infringed the relevant provisions of the Act in the respects alleged by the Commission and the only question which arises in the proceedings is the amount of the pecuniary penalties which should be imposed by the Court pursuant to s.76(1) of the Act.

As will appear from the facts to which I shall briefly refer this is not a case which calls for the imposition of substantial penalties. Indeed, counsel for the Commission very fairly submitted to the Court that substantial penalties were not called for.

The facts lie within a small compass. The respondents are the proprietors of service stations trading within the Perth metropolitan area. The selling of petrol is a major part of their businesses. In November 1982 the price of petrol sold by service stations in the Perth metropolitan area was being severely discounted. The stage had been reached where petrol was being sold by retail at prices roughly equivalent to the approved wholesale price. In consequence it was rapidly becoming uneconomic for service station proprietors to continue selling petrol at the discounted prices. The respondents and a number of other service station proprietors held meetings to consider whether anything could be done about this situation.

There are over 500 service stations in the Perth metropolitan area, but only about 15 persons appear to have attended the meetings. An informal decision was taken at one of the meetings that an attempt should be made to persuade service station proprietors to reduce the level of discounting and to sell at a price not less than 2 cents a litre above the approved wholesale price.

Another, and perhaps the major, reason for the calling of the meetings was to discuss the possibility of forming some type of association which could represent service station proprietors in negotiations to obtain lower wholesale prices when dealing with oil companies. As at November 1982 the State government then in office had announced its intention of…