Legal Research
Cases
Trade Practices Commission v TNT Management Pty Ltd

Trade Practices Commission v TNT Management Pty Ltd

Link copied

Case Copied 12 February 1985 76 min read

Contents

On this page

Re: TRADE PRACTICES COMMISSION
And: T.N.T. MANAGEMENT PTY. LIMITED; BRAMBLES HOLDINGS LIMITED; MAYNE NICKLESS
LIMITED; YOUNGS TRANSPORT PTY. LIMITED; ANSETT TRANSPORT INDUSTRIES
(OPERATIONS) PTY. LIMITED; EXPRESS FREIGHT PTY. LIMITED; ASSOCIATED STEAMSHIPS
PTY. LIMITED; ESLEA HOLDINGS LIMITED, formerly Ipec Holdings Limited and
ROADSWIFT TRANSPORT PTY. LIMITED, formerly Interstate Parcel Express Co. Pty.
Limited
No. G44 of 1978
Trade Practices - Evidence - Statutes
(1985) 58 ALR 423, (1985) 6 FCR 1

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Franki J.(1)

CATCHWORDS

Trade Practices - Agreement or understanding by carrier of goods not to deal with broker or consultant - Whether agreement or understanding made - Whether within restraint of trade and commerce provisions before 1 July 1977 - Whether agreement or understanding given effect to before or after 1 July 1977 - Exclusionary provision - Substantial lessening of competition in a market - The role of economic evidence - Whether Trade Practices Commission can commence action after 1 July 1977 for contravention before that Act.

Trade Practices Act 1974 - s. 45.

Trade Practices Amendment Act 1977 - ss. 8, 25.

Trade Practices - Restrictive trade practices - Restraint of trade - Conduct substantially lessening competition - Market - Arrangement or understanding - Effect on competition - Giving effect to antecedent arrangement or understanding - Trade Practices Act 1974 (Cth), ss 45(2), (3), (4), 84(2).

Trade Practices - Exclusionary provisions - "Particular persons" - Trade Practices Act 1974 (Cth), s 4D.

Trade Practices - Conduct of employee "on behalf of" corporation - Meaning and validity of statutory provision deeming conduct engaged in by corporation - Trade Practices Act 1974 (Cth), s 84(2).

Evidence - Admissions - Who may make - Agents and servants - Admissions as to past events - Trade Practices Act 1974 (Cth), s 84(2).

Statutes - Interpretation - Construction of penal statutes - Ambiguity - Trade Practices Act (Cth), s 45(4).

HEADNOTE

Held: (1) A contract, arrangement or understanding could properly be described as in restraint of trade and commerce for the purpose of the Act prior to 1 July 1977 only if the contract were in restraint of trade according to the common law rules and, in addition, satisfied the test provided in s 45(4) (as it then stood).

Quadramain Pty Ltd v. Sevastapol Investments Pty Ltd (1976) 133 CLR 390, considered.

TPC v. Allied Mills Industries Pty Ltd (No 4) (1981) 60 FLR 1; 3 ATPR 40-237; Hollywood Premiere Sales Pty Ltd v. Faberge (Aust) Pty Ltd (1976) 28 FLR 167; TPC v. Email Ltd (1980) 43 FLR 383; 3 ATPR 40-172, not followed.

(2) The words "is likely to have" in s 45(4) (as it stood prior to July 1977) in connection with the words "significant effect on competition" meant that the probability must be something not very far short of "more probably than not", except in unusual circumstances.

Tillmanns Butcheries Pty Ltd v. Australian Meat Industry Employees' Union (1979) 42…

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.

Keep reading for free

Create a free CaseChat account to read Trade Practices Commission v TNT Management Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1985] FCA 19
Decision Date: 12 FEBRUARY 1985

CaseChat Overview and Summary

The Trade Practices Commission sought to have a court declaration that an agreement between TNT Management Pty Ltd, an interstate transport company, and various other transport companies, contravened the Trade Practices Act. The agreement in question was an arrangement by which the companies agreed not to deal with a particular freight broker or consultant. The Full Bench of the Federal Court heard the matter and was tasked with determining several legal issues, including whether the companies had actually entered into an agreement or understanding, whether the agreement fell within the restraints of trade and commerce provisions of the Trade Practices Act before 1 July 1977, whether the agreement was given effect to before or after that date, and whether the agreement constituted an exclusionary provision that substantially lessened competition in a market. Additionally, the court considered the role of economic evidence in determining whether the agreement contravened the Act, and whether the Trade Practices Commission could commence proceedings after 1 July 1977 for a contravention that occurred before that date.

The court found that there was no evidence of an agreement or understanding between the companies, and that the companies had not given effect to the alleged agreement before 1 July 1977. The court also found that the alleged agreement did not constitute an exclusionary provision that substantially lessened competition in a market, and that the Trade Practices Commission could not commence proceedings after 1 July 1977 for a contravention that occurred before that date. The court further held that economic evidence could be relevant in determining whether an agreement contravened the Trade Practices Act, but that such evidence was not necessary in this case as there was no evidence of an agreement or understanding. The court ultimately dismissed the Trade Practices Commission's proceedings and reserved the question of costs.

The court's decision highlights the importance of establishing the existence of an agreement or understanding between parties in cases involving alleged contraventions of the Trade Practices Act. The court also emphasised the need for evidence to support any claims of an agreement or understanding, as well as the need for evidence of an exclusionary provision that substantially lessens competition in a market. The court's findings on the role of economic evidence in such cases may also be relevant in future proceedings before the court. The court's dismissal of the Trade Practices Commission's proceedings and reservation of the question of costs may have implications for future cases involving similar issues.

Orders

Orders of the court

The proceedings be dismissed.

The question of costs is reserved.

Orders accordingly

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.