Trade Practices Commission v Queensland Aggregates Pty Ltd

Re: TRADE PRACTICES COMMISSION
And: QUEENSLAND AGGREGATES PTY. LIMITED and BRIAN WHITE
No. Qld. G 3 of 1981
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.

CATCHWORDS

Trade Practices - exclusive dealing - offer to provide work if haulage contractor acquired truck from another company - whether offer of work "services" for purposes of Trade Practices Act 1974 - ss.4, 47(1), (6) and (13) thereof.

HEARING

SYDNEY

#DATE 14:8:1981

ORDER

1. The point of law which was separately tried be decided adversely to the respondents.

2. The respondents pay the applicant's costs of the argument thereof.

JUDGE1

This is the determination of a point of law the argument upon which was heard separately as the result of an order made by me pursuant to Order 29 Rule 2 of the Rules. The Commission is suing the respondents for penalties and an injunction in relation to a number of alleged breaches of s.47 of the Trade Practices Act 1974. The section prohibits exclusive dealing. The scheme of it is to proscribe in sub-section (1) the practice of exclusive dealing and then in succeeding sub-sections to provide for what is to constitute that conduct. The sub-section in question is sub-section (6) which provides:

"A corporation also engages in the practice of exclusive dealing if the corporation -

(a) supplies, or offers to supply, goods or services;

(b) supplies, or offers to supply, goods or services at a particular price; or

(c) gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the corporation,

on the condition that the person to whom the corporation supplies or offers or proposes to supply the goods or services or, if that person is a body corporate, a body corporate related to that body corporate will acquire goods or services of a particular kind or description directly or indirectly from another person."

The amended statement of claim in paragraphs 4 to 14 inclusive alleges the making by the first respondent of a number of offers each of which is said to constitute exclusive dealing and thus a contravention of s.47. Each paragraph is in a form similar to the others, the only difference being that the offers were made at different times to different persons. In order that the point in question may be understood it is sufficient, therefore, to refer only to one paragraph. For this purpose I have selected paragraph 4 and the particulars appended to it. It is as follows:

"4. In or about May, 1979 the first respondent offered to supply work as a cartage contractor to Gordon Ashburn Ahlquist on condition that he acquire a Ford Louisville truck from Denmac Ford Pty Ltd.

PARTICULARS

The said offer was made at Brisbane in the State of Queensland to the said Gordon Ashburn Ahlquist orally by the second respondent as the servant or agent on behalf of the…