The Australian Competition and Consumer Commission will appeal some aspects of the judgment of the Federal Court made on 3 November 2006 in ACCC v Dataline.Net.Au Pty Ltd and Others.
The court found that Dataline and Australis Internet Pty Ltd* had engaged in resale price maintenance, unconscionable conduct and misleading and deceptive conduct and that World Publishing Systems Pty Ltd had engaged in misleading and deceptive conduct.
The court also found that Mr Russell, managing director of Dataline and Australis was knowingly concerned in the conduct of all three companies. The court restrained him from engaging in resale price maintenance and imposed a pecuniary penalty in respect of the resale price maintenance conduct. A costs order was also made against him.
However, the court declined to impose pecuniary penalties on the corporate respondents, which were in liquidation, in relation to the resale price maintenance conduct and declined to grant injunctions restraining Mr Russell from engaging in unconscionable conduct and misleading and deceptive conduct as sought by the ACCC. The ACCC will appeal those decisions.
The ACCC is also appealing the amount of the pecuniary penalty imposed on Mr Russell for the resale price maintenance conduct.
The judgment followed an application made by the ACCC during the proceedings to have the respondents' defence struck out for non-compliance with court orders and to obtain judgment under new provisions in the Federal Court Rules which allow a court to grant relief based on the ACCC's statement of claim.
The ACCC is seeking clarification of the court's ability under the new provisions to grant injunctive relief in relation to all the contravening conduct as alleged by the ACCC. In respect of the resale price maintenance conduct, the ACCC is concerned to ensure that adequate penalties are imposed by the court as a deterrent against future conduct.
The appeal is expected to be heard before the Full Court of the Federal Court in May 2007.
* Australis Pty Ltd ACN 099 680 430 is not associated with the companies referred to in this news release.