Proceedings instituted on 19.12.03 in the Federal Court, Melbourne, against a supplier of paragliders, High Adventure and its director, Mr Lee Scott. The next directions hearing is set down for 19.4.04
ss. 45, 52. Alleged bid rigging, misleading or deceptive conduct.
Proceedings were instituted on 24 December 2001 in the Federal Court, Sydney, against 17 scrap metal merchants alleging collusive conduct by some bidders at auctions in New South Wales throughout 1999. The respondents allegedly formed agreements at auctions that could restrict the acquisition of scrap metal from auctioneers. This agreement was followed through by the respondents who met later in the day to discuss how to allocate the day’s purchases.
The ACCC wants declarations, injunctions, penalties and costs. The hearing is set down for three weeks starting from March 2004 before Justice Bennett in Sydney.
ss. 48, 51AC, 51AD, 52, 53 and 59(2). Alleged resale price maintenance, unconscionable conduct, franchising code of conduct, misleading or deceptive conduct, and false misrepresentations.
Proceedings instituted on 26.11.01 in the Federal Court, Brisbane.
Chaste Corporation and others, including Mr Peter Foster, have allegedly engaged in unconscionable conduct, breach of an industry code and false and misleading representations about the sale of area manager distributorships, the profitability of the distributorships and the efficiency of a weight loss product TRIMit. The respondents acted with complete disregard of area managers’ reasonable commercial expectations or the long-term viability of Chaste.
A date for the next directions hearing has not been set.
Proceedings were instituted on 21.12.01 in the Federal Court, Brisbane. The ACCC is taking action against Dataline.net.au Pty Ltd, Australis Internet Pty Ltd, World Publishing Systems Pty Ltd, the managing director of Dataline and CEO of Australis, John Lynden Russell, and senior staff.
On 8.2.02 the ACCC’s application for interlocutory relief was heard before Justice Drummond who ordered:
an injunction restraining Dataline, Australis and WPS from debiting the credit card of any person in connection with their business without first receiving a written authorisation for such a debit bearing a handwritten signature by the apparent credit card holder
by consent, Dataline and Australis undertake not to take any step in the proceedings in the District Courts of Queensland and Western Australia against small businesses until the conclusion of the ACCC’s proceedings.
On 7.11.03 the parties attended mediation, but no settlement was reached. On 25.9.03 Justice Keifel ordered that the respondents deliver a discovery list within 28 days. If they failed to comply their defence would be struck out and directions would be made leading to trial. On 28.11.03 the ACCC filed an application for orders to strike out the respondents’ defence. The hearing has been adjourned until after 1.3.04.
s. 45. Alleged attempt by Visy Paper to induce another business (Northern Pacific Paper) to enter into a market sharing agreement for the collection of recyclable waste paper.
Proceedings instituted 18.11.98. On 20.11.00 Justice Sackville dismissed the ACCC’s application with costs. On 29.11.00 the ACCC appealed. Appeal heard 17–18.5.01 before Justices Hill, North and Conti.
On 10.8.01 the Full Federal Court upheld the ACCC’s appeal. Visy obtained special leave to appeal to the High Court and the matter was heard on 3.12.02.
On 8.10.03, by a 5:1 majority, the High Court agreed with the Full Federal Court that the conduct was illegal. In a joint judgment, their Honours Chief Justice Gleeson and Justices McHugh, Gummow and Hayne said that ‘section 45(6) provides to Visy Paper no answer to the case made against it by the ACCC’.
The case represents the first time the scope of s. 45(6) has been comprehensively considered by the High Court. The court’s construction of s. 45(6) resulted in Visy’s conduct being strictly prohibited by s. 45.
The matter has been remitted to the Federal Court to consider the issue of penalty.
ss. 45 and 45(4D). Alleged primary boycotts, restrictive agreements.
Proceedings instituted on 27.6.03. The ACCC alleged that Liquorland and Woolworths had entered into contracts, arrangements and understandings which substantially lessened competition in a market and also contained an exclusionary provision in contravention of the Act.
The ACCC instituted legal proceedings against Liquorland for 30 contraventions and Woolworths for 16 contraventions of the Act. The ACCC wants declarations, injunctions, pecuniary penalties, findings of fact, orders relating to trade practices compliance programs and costs.
A further directions hearing is scheduled for 27.7.04 before Justice Allsop.
s. 45D. Alleged secondary boycott to cause substantial loss or damage.
Proceedings instituted on 16.5.03 against the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), the Australian Workers’ Union (AWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The ACCC alleged that the unions had organised a picket at the entrance to the plant and encouraged Transfield employees and subcontractors not to work because the operators of the plant had refused to enter into certified agreements with the unions regarding its employees who will be working at the plant.
An application for final orders to be made in the proceeding by consent of the parties was heard by the court on 11.9.03. The ACCC is waiting for the court’s decision.
The ACCC alleges that between September and November 2001 company representatives had several meetings and telephone conversations during which they reached price fixing arrangements or understandings about bricks supplied to builders in Western Australia.
Proceedings instituted on 1.10.99 in power case and on 6.11.00 in the distribution case. Judgment on Alstom Australia Limited and some associated individual respondents was handed down on 6.4.01 in both proceedings. A total of $7 million in penalties was awarded against Alstom.
Penalties totalling approximately $15 million were ordered against Schneider Electric, Wilson Transformer Company and A W Tyree Transformers and their managing directors on 3.5.02. Schneider’s penalty of $7 million was reduced to $5.5 million on appeal.
The matter continues against ABB and some individual respondents.
ss. 12DA, 12DB, 12DF of the ASIC Act (equivalent to ss. 52, 53 and 55A of the TPA). Alleged false, misleading or deceptive advertising of the price and benefits of health insurance products.
Proceedings instituted on 26.10.00.* On an appeal to the Full Federal Court, Medibank was successful in having a number of paragraphs of the ACCC’s application struck out. The Full Court’s decision was handed down on 13.9.02. The relevant paragraphs sought compensation for members misled by the allegedly misleading representations. The ACCC unsuccessfully sought special leave to appeal the Full Court’s decision to the High Court (20.6.03). As a consequence, the ACCC has sought leave to further amend the application to require Medibank to make good the allegedly misleading representations under an injunction granted under s. 80 (as distinguished from paying compensation). Justice Ryan heard argument on the notice of motion regarding the further amendment of the application on 6.11.03 and has reserved his decision.
The substantive case has been set for hearing for Justice Ryan in the first available three weeks in February or March 2004.
* Proceedings were instituted under ss. 12DA, 12DB(1)(c), 12DB(1)(e), 12DB(1)(g), 12DF of the ASIC Act as opposed to the Trade Practices Act. Until March 2002 health insurance was regulated through the ASIC Act. ASIC had, however, formally delegated the regulation of all consumer protection aspects of health insurance to the ACCC through the use of nominated ACCC officers as delegates.
s. 45. Alleged price fixing and cartel conduct in relation to retail petrol prices in Geelong, Victoria.
The ACCC has instituted court proceedings against eight companies and 10 individuals, alleging that they fixed retail petrol prices in the Geelong area.
The respondents were involved in retailing or distributing petrol in the Geelong area under the BP, APCO, Mobil, Shell and Liberty brands. The ACCC alleges that they were part of a long-standing price-fixing arrangement during the 1990s until December 2000 to increase retail petrol prices by telephoning one another in advance and communicating the size and approximate time of a price rise.
A directions hearing was held on 24 November 2003 before Justice Gray in Melbourne where he made orders setting out a timetable for the progress of the litigation stages between the parties.
A further directions hearing for these matters is listed for 19 April 2004 before Justice Gray in the Federal Court, Melbourne.
s. 45. Alleged price fixing about retail petrol prices in Ballarat, Victoria.
Proceedings instituted 21.5.02 in the Federal Court, Melbourne, with some respondents added on 20.12.02.
Penalty hearings for Chisholm, Mr Levick, Justco and Mr Bentley have been heard and the parties are awaiting judgments. Interlocutory steps are being undertaken regarding the proceedings against the other respondents. The matter has been set down for a 25-day trial commencing 3 May 2004.
ss. 46, 47. Alleged misuse of market power, exclusive dealing.
Proceedings instituted on 5.9.02 in the Federal Court, Sydney, with the ACCC also taking action against the current and former managing directors of Fila, Mr Craig Reidy and Mr David Carney, for their alleged involvement.
Fila allegedly implemented a selective distribution policy in late 1999 to supply clothing retailers with Fila AFL-licensed apparel on condition that these retailers agreed not to stock AFL-licensed apparel from Fila’s competitors.
A directions hearing was held on 4.10.02.
On 28.4.03 Justice Hill heard the notice of motion by the first and third respondents to transfer the proceedings to the Federal Court’s Victorian registry and the applicant’s notice of motion to obtain an order for discovery. On 8.5.03 Justice Hill ordered that the matter be transferred to the Victorian Registry of the Federal Court. He also ordered that the first respondent give discovery of the categories of documents (as set out in the schedule A to the orders) by 27.6.03. At the directions hearing on 5.8.03 Justice Heerey in Sydney made orders setting out a timetable for the progress of litigation.
A direction hearing was held before Justice Heerey on 27.11.03 at which time Fila withdrew its defence to the allegations and the ACCC discontinued its proceedings against Mr Craig Reidy.
On 9.12.03 Fila was placed into voluntary administration.
A penalty hearing has been scheduled for 26.3.04 for the ACCC’s proceedings against Fila. The proceedings against David Carney are continuing with the ACCC required to file any additional evidence by 30.4.04.
ss. 45, 46, 47, 60. Alleged price fixing and market sharing, misuse of market power, exclusive dealing, harassment and coercion.
Proceedings instituted on 5.9.02 in the Federal Court, Brisbane, against Eurong Beach Resort Limited, Mr Sidney Albert Melksham, Jaigear Pty Ltd, Oser Pty Ltd and Ms Angela Kay Burger alleging predatory pricing and other conduct in contravention of the Act regarding vehicular barge services to Fraser Island.
The ACCC is seeking declarations, injunctions, pecuniary penalties, adverse publicity orders and the implementation of a trade practices compliance program. A trial date is yet to be set.
ss. 46, 47. Alleged misuse of market power, exclusive dealing.
Proceedings instituted on 1.11.02 in the Federal Court, Sydney.
Baxter Healthcare Pty Ltd allegedly misused its market power and engaged in exclusive dealing in the supply of medical products to certain Australian state and territory health purchasing authorities.
The matter is currently progressing through interlocutory stages. A new trial date has been set for 17.5.04.
Proceedings instituted on 21.11.02 in the Federal Court, Melbourne. On 16.9.02 Dermalogica Pty Ltd wrote to two retailers stating that it strongly discouraged the selling of its products for more or less than their suggested retail price. Dermalogica noted that the retailers were offering its product range on their websites for lower than the recommended retail price. Dermalogica requested that the retailers adjust their online retailing prices.
Dermalogica’s web guidelines also stated that a violation of its policy could result in account termination and legal action.
The matter was heard in the Federal Court on 14–15.7.03. Justice Goldberg reserved his decision about contested claims; and penalty about uncontested claims.
Proceedings instituted on 5.12.02. George Weston and Mr Loneragan allegedly tried to induce a competitor to increase the wholesale price of wheaten flour.
In November 1999 Mr Loneragan called senior representatives of a competitor stating that George Weston was raising its prices and that they should cooperate and do the same. Mr Loneragan made a second call to the same competitor stating that George Weston was putting flour prices up and was looking for cooperation from that competitor.
A hearing has been set down for 3 days from 12 July 2004.
Hoffmann–La Roche, BASF Aktiengesellschaft and Takeda Chemical Industries,
ss. 45 and 45A. Alleged market sharing and price fixing.
Proceedings instituted on 23.8.01 in the Federal Court, Melbourne, against three of the largest foreign producers of vitamin C used for human consumption.
The proceedings arise from alleged agreements that were made and implemented overseas between January 1991 and October 1995 and which was part of the broader global vitamins cartel which came to an end in about 1999. In 2001 the ACCC was successful in securing record penalties of $26 million against Roche Vitamins Australia Pty Ltd, BASF Australia Limited, and Aventis Animal Nutrition Pty Ltd for their involvement in arrangements to fix prices and allocate market shares of animal vitamins A and E and pre-mix.
The ACCC has obtained leave of the Federal Court to serve the proceedings on some of the respondents located in Switzerland, Germany and Hong Kong, and is preparing to seek similar leave regarding the remaining respondents.
McMahon Services Pty Ltd, SA Demolition & Salvage Pty Ltd and DCD Enterprises Pty Ltd (t/a D&V Services),
ss. 45A and 46. Alleged price fixing, misuse of market power.
Proceedings instituted on 24.1.03 in the Federal Court, Adelaide, for alleged price fixing of a tender for demolition and asbestos removal work.
In late 2000 the Defence Estate Office of the Commonwealth Department of Defence invited several companies to tender for a project involving the removal of asbestos and the demolition of structures at its site in Salisbury, South Australia. McMahon Services and SA Demolition were two of the companies invited to tender.
The next trial date is to be set for mid to late 2004.
