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Federal Court of Australia - Full Court Decisions |
Last Updated: 21 October 2002
Rural Press Ltd v Australian Competition & Consumer Commission [2002] FCAFC 310
COSTS - appellants and respondent each succeeding on aspects of appeal and cross-appeal - pecuniary penalties imposed by primary Judge upheld - appropriate costs order on appeal and cross-appeal.
JUDGMENTS AND ORDERS - whether orders made by primary Judge should be amended on appeal in favour of a respondent who has not filed a notice of appeal.
Trade Practices Act 1974 (Cth), ss 4D, 45, 46(1)
Federal Court of Australia Act 1976 (Cth), s 28
Federal Court Rules, O 35 r 7
Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213, cited.
Australian Competition and Consumer Commission v Rural Press Ltd (2001) 23 ATPR ¶41-804, cited.
Australian Competition and Consumer Commission v Rural Press Ltd (2001) 23 ATPR ¶41-833, cited.
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, cited.
Western Australia v Ward [2002] HCA 28; (2002) 191 ALR 1, cited.
RURAL PRESS LTD & ORS v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION & ORS
S 141 of 2001
WHITLAM, SACKVILLE & GYLES JJ
18 OCTOBER 2002
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA |
|
SOUTH AUSTRALIA DISTRICT REGISTRY |
S 141 of 2001 |
THE COURT ORDERS THAT:
1. The orders made by the Full Court on 16 July 2002 be amended so that par 3 of the orders reads as follows:
"3. The orders and declarations made by the primary Judge on 23 March 2001 be set aside and in lieu thereof the following orders and declarations be made:
A. AGAINST EACH OF THE FIRST, SECOND AND FIFTH RESPONDENTS
1. A declaration that each of the First, Second and Fifth Respondents, by themselves, their servants or agents, contravened sections 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth) ("the Act") by entering into and giving effect to an arrangement which had the purpose and effect of substantially lessening competition in the market for the provision of regional newspapers in the Murray Bridge district.
2. An order that the First, Second and Fifth Respondents, whether by their directors, servants or agents or otherwise howsoever, be restrained for a period of three years, from:
(a) attempting to make or arrive at,
(b) making or arriving at, or
(c) giving effect to:
any contract, arrangement or understanding which contains a provision that has the purpose, or has or is likely to have the effect, of substantially preventing, hindering or lessening competition in the market for the provision of regional newspapers in the Murray Bridge district.
B. AGAINST EACH OF THE THIRD AND FOURTH RESPONDENTS
3. A declaration that each of the Third and Fourth Respondents were directly or indirectly knowingly concerned in or a party to the First and Second Respondents' contraventions of sections 45(2)(a)(ii) and 45(2)(b)(ii) of the Act as set out in paragraph 1 above.
4. An order that the Third and Fourth Respondents be restrained for a period of 3 years from being in any way, directly or indirectly, knowingly concerned in, or party to, the making or arriving at, or the giving effect to, by any person, of any contract, arrangement or understanding which contains a provision that has the purpose, or has or is likely to have the effect, of substantially preventing, hindering or lessening competition in the market for the provision of regional newspapers in the Murray Bridge district.
C. AGAINST THE SIXTH RESPONDENT
5. A declaration that the Sixth Respondent was directly or indirectly knowingly concerned in or a party to the Fifth Respondent's contraventions of sections 45(2)(a)(ii) and 45(2)(b)(ii) of the Act as set out in paragraph 1 above.
6. An order that the Sixth Respondent be restrained for a period of 3 years from being in any way, directly or indirectly, knowingly concerned in, or party to, the making or arriving at, or the giving effect to, by any person, of any contract, arrangement or understanding which contains a provision that has the purpose, or has or is likely to have the effect, of substantially preventing, hindering or lessening competition in the market for the provision of regional newspapers in the Murray Bridge district."
2. The appellants pay 50 per cent of the Australian Competition and Consumer Commission's costs of the appeal.
3. The Australian Competition and Consumer Commission pay the appellants' costs of its appeal and cross-appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
SOUTH AUSTRALIA DISTRICT REGISTRY |
S 141 of 2001 |
THE COURT:
1 This Court delivered judgment on an appeal and cross-appeal in these proceedings on 16 July 2002: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213. The parties have now filed further submissions in relation to costs and the form of orders that should be made. In order to identify the issues, some background is required.
The Proceedings at First Instance
2 On 1 March 2001, the primary Judge gave judgment in proceedings brought by the Australian Competition and Consumer Commission ("ACCC") against six respondents: Australian Competition and Consumer Commission v Rural Press Ltd (2001) 23 ATPR ¶41-804. The ACCC alleged in those proceedings that:
* the first and second respondents ("Rural Press" and "Bridge Printing", respectively) had contravened s 46(1)(a) of the Trade Practices Act 1974 (Cth) ("TP Act") by taking advantage of their substantial degree of market power in the market for the provision of regional newspapers in the Murray Bridge district of South Australia for the purpose of eliminating the fifth respondent ("Waikerie Printing") as a competitor in the market;
* Rural Press and Bridge Printing had contravened s 46(1)(c) of the TP Act by taking advantage of their substantial degree of market power in the Murray Bridge market for the purpose of deterring or preventing Waikerie Printing from engaging in competitive conduct in that market;
* Rural Press, Bridge Printing and Waikerie Printing had contravened ss 45(2)(a)(i) and 45(2)(b)(i) of the TP Act by entering into and giving effect to an arrangement containing an exclusionary provision within the meaning of s 4D of the TP Act;
* Rural Press, Bridge Printing and Waikerie Printing had contravened ss 45(2)(a)(ii) and 45(2)(b)(ii) of the TP Act by entering into and giving effect to an arrangement which had the purpose and effect of substantially lessening competition in the Murray Bridge market;
* the third and fourth respondents ("Mr Law" and "Mr McAuliffe", respectively) had been knowingly concerned in or a party to the contraventions by Rural Press and Bridge Printing of ss 46(1)(a), 46(1)(c), 45(2)(a)(i), 45(2)(a)(ii), 45(2)(b)(i) and 45(2)(b)(ii) of the TP Act; and
* the sixth respondent ("Mr Taylor") had been knowingly concerned in or a party to Waikerie Printing's contraventions of ss 45(2)(a)(i), 45(2)(a)(ii), 45(2)(b)(i) and 45(2)(b)(ii) of the TP Act.
3 In substance, the primary Judge found in favour of the ACCC on all these issues. On 23 March 2001, his Honour made orders and declarations giving effect to his judgment. These orders and declarations are reproduced in Schedule A to this judgment.
4 On 7 August 2001, the primary Judge gave a judgment on pecuniary penalties and related matters: Australian Competition and Consumer Commission v Rural Press Ltd (2001) 23 ATPR ¶41-833. His Honour imposed penalties pursuant to s 76 of the TP Act on Rural Press ($400,000), Bridge Printing ($200,000), Waikerie Printing ($60,000), Mr Law ($40,000), Mr McAuliffe ($30,000) and Mr Taylor ($15,000).
5 On the same date, his Honour ordered the respondents to pay the costs of the ACCC and gave liberty to apply for the purpose of determining the extent to which each respondent should be liable for costs.
The Proceedings in the Full Court
6 Four respondents to the proceedings at first instance appealed against the judgment of 1 March 2001 and the consequential orders and declarations. The four appellants are Rural Press, Bridge Printing, Mr Law and Mr McAuliffe ("the appellants"). Waikerie Printing and Mr Taylor did not appeal but were named as respondents (together with the ACCC) to the appeal. Waikerie Printing and Mr Taylor submitted to any order on the appeal, except as to costs.
7 The ACCC filed a notice of cross-appeal expressed to be an appeal from the orders made on 7 August 2001. Because of doubts as to the competence of the cross-appeal, the ACCC also filed an application for an extension of time in which to file and serve a notice of appeal from the judgment on penalties. The Full Court granted the extension of time and treated the appeal on the question of penalties as a cross-appeal. The cross-respondents to the cross-appeal are the appellants.
8 As we have noted, the Full Court delivered judgment on the appeal and cross-appeal on 16 July 2002. The Full Court allowed the appeal in part. In particular, the Full Court held that the primary Judge had erred in finding that:
* Rural Press and Bridge Printing had contravened ss 45(2)(a)(i) and 45(2)(b)(i) of the TP Act (at [108]); and
* Rural Press and Bridge Printing had taken advantage of their market power in the Murray Bridge market for a proscribed purpose and had thus contravened ss 46(1)(a) and 46(1)(c) of the TP Act (at [153]).
9 The Full Court upheld the primary Judge's conclusion that Rural Press and Bridge Printing had contravened ss 45(2)(a)(ii) and 45(2)(b)(ii) of the TP Act, by entering into and giving effect to an arrangement which had the purpose and effect of substantially lessening competition in the Murray Bridge market (at [133]). The Full Court also upheld the finding that Mr Law and Mr McAuliffe had been knowingly concerned in the contraventions by Rural Press and Bridge Printing of ss 45(2)(a)(ii) and 45(2)(b)(ii) of the TP Act (at [163]).
10 Finally, the Full Court dismissed the ACCC's cross-appeal on penalties (at [170], [174]).
11 The orders made by the Full Court on 16 July 2002 are set out in Schedule B to this judgment.
The Submissions
12 In conformity with the orders made by the Full Court, the appellants (who are also the cross-respondents to the cross-appeal) filed written submissions on costs. They contended that, having regard to their success on most issues in the appeal and on the cross-appeal, the ACCC should be ordered to pay 75 per cent of their costs of the appeal and cross-appeal. The appellants also sought the opportunity to make further written submissions on the costs of the proceedings at first instance.
13 The appellants' written submissions attached a form of orders which they proposed should be substituted for the orders made by the Court. The effect of the proposed variations would be to set aside:
* the declaration against Waikerie Printing that it had contravened ss 45(2)(a)(i) and 45(2)(b)(i) of the TP Act;
* the order restraining Waikerie Printing from engaging in conduct contravening those provisions;
* the declaration that Mr Taylor had been knowingly concerned in Waikerie Printing's contravention of ss 45(2)(a)(i) and 45(2)(b)(i) of the TP Act; and
* the order that Mr Taylor be restrained from being concerned in further breaches of those provisions in relation to the Murray Bridge newspaper market.
The appellants submitted that the variations in the orders are required to achieve "consistency as between the declarations, injunctions and reasons of the Full Court".
14 The ACCC argued in its written submissions that since the Full Court had upheld the primary Judge's conclusion that the appellants had contravened the TP Act, it was appropriate that the appellants pay at least two-thirds of the ACCC's costs of the appeal. The ACCC further submitted that since the Full Court had held that the primary Judge's discretion as to penalty-fixing had miscarried and had to be re-exercised, there should be no order as to the costs of the cross-appeal, even though the Full Court ultimately affirmed the primary Judge's orders.
15 The ACCC agreed with the appellants' proposal to amend the orders of the Full Court. The ACCC pointed out that the Federal Court Rules, O 35 r 7, empower the Court to vary or set aside a judgment or order before it has been entered.
16 In the light of the parties' written submissions, the legal representatives were given leave to make additional submissions as to whether there should be any variation to the costs order made by the primary Judge. The Court also invited the parties' comments on the source of power to set aside the declaration made against Waikerie Printing and the declaration and order made against Mr Taylor, having regard to the fact that neither Waikerie Printing nor Mr Taylor had filed a notice of appeal. The Court requested assistance on the question of whether variations to the orders made in the Full Court's judgment could properly be made without prior notice to Waikerie Printing and Mr Taylor.
17 The appellants in their supplementary written submissions contended that the six respondents to the proceedings at first instance should be required to pay no more than 50 per cent of the ACCC's costs. The appellants also submitted that the Court has power to vary its orders in the manner suggested in their original submissions by reason of ss 28(1) and 28(3) of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act"). Those provisions are as follows:
"28(1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:(a) affirm, reverse or vary the judgment appealed from;
(b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;
(c) set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;
...
(3) The powers specified in subsection (1) may be exercised by the Court notwithstanding that the notice of appeal asks that part only of the decision may be reversed or varied, and may be exercised in favour of all or any of the respondents or parties, including respondents or parties who have not appealed from or complained of the decision."
The appellants did not concede that prior notice to Waikerie Printing and Mr Taylor was required in order to vary the orders in a manner favourable to those parties, but pointed out that Waikerie Printing and Mr Taylor had in fact been given prior notice of the submissions the appellants proposed to make.
18 The ACCC in its supplementary written submissions argued that the primary Judge's costs order should stand. If, however, the Court was minded to make some change to that order so as to reflect the issues on which the ACCC ultimately failed on the appeal, the ACCC submitted that the reduction should be no more than 20 per cent of its costs of the trial. The ACCC agreed with the appellants that s 28(3) of the Federal Court Act gives the Court power to make the proposed variations to the orders made on 16 July 2002.
19 Written submissions were also received on behalf of Waikerie Printing and Mr Taylor. They argued that the Full Court has power pursuant to s 28(1)(b) of the Federal Court Act to modify the orders made on 16 July 2002 in the manner suggested by the appellants and that no further notice is required for the orders to be so amended. They added that par 6 of the orders made by the primary Judge should be deleted, insofar as it enjoins Waikerie Printing from engaging in conduct that would, in effect, contravene ss 45(2)(a)(i) and 45(2)(b)(i) of the TP Act.
20 Waikerie Printing and Mr Taylor invited this Court to exercise afresh the discretion in relation to the penalties imposed on them by the primary Judge. However, they stated that they would be content to submit to orders affirming the penalties imposed on them provided the ACCC consents and such orders are "otherwise acceptable to the Court".
Costs of the Appeal
21 The appellants submitted that they had enjoyed more success than failure in the appeal and, in particular, had prevented the ACCC from succeeding in what it had described in correspondence as its "primary aim" of establishing contraventions of s 46 of the TP Act. Taking this into account and also considering the ACCC's failure on the cross-appeal, the appropriate order, so they argued, was to require the ACCC to pay 75 per cent of the costs of the appeal and cross-appeal.
22 Both the appellants and the ACCC enjoyed some success on the appeal and both were unsuccessful on important issues. The ACCC ultimately succeeded in upholding the primary Judge's finding that Rural Press and Bridge Printing contravened ss 45(2)(a)(ii) and 45(2)(b)(ii) of the TP Act. It also succeeded in upholding the finding of accessorial liability against Mr Law and Mr McAuliffe, although on a more limited basis than the primary Judge. On the other hand, the ACCC failed in its attempts to support the primary Judge's findings that Rural Press and Bridge Printing had contravened the prohibitions on exclusionary provisions (ss 45(2)(a)(i) and 45(2)(b)(i)) and had taken advantage of their market power for proscribed purposes (ss 46(1)(a) and 46(1)(c)).
23 In our opinion, it is not appropriate to attempt to dissect precisely the time taken on the appeal on specific issues. Nonetheless, it is fair to say that the appeal presented a number of distinct issues of law, although there was some degree of overlap in the argument. Moreover, the appellants succeeded in having some of the declarations made by the primary Judge set aside. We think it is appropriate that some allowance be made for the fact that the ACCC failed on several issues that took up significant time on the appeal and, doubtless, in preparation for the appeal. In our opinion, justice will be done if the appellants pay 50 per cent of the ACCC's costs of the appeal.
24 The ACCC failed on the cross-appeal even though the Court had to re-exercise the power to impose pecuniary penalties on each of the appellants. The ACCC should pay the appellants' costs of the cross-appeal.
Costs at First Instance
25 The appellants submitted that they should be required to pay no more than 50 per cent of the ACCC's costs of the proceedings at first instance, for five reasons:
(i) the ACCC, as events have turned out, has succeeded on only one of three distinct causes of action that were the subject of the ten day hearing;
(ii) the ACCC's conduct made it necessary for the primary Judge to hold an additional hearing on the form of the orders;
(iii) the appellants, in substance, had been successful on the issues raised in relation to both the quantum of penalties and the ACCC's claim to other relief such as an order that the appellants formulate a compliance program;
(iv) the ACCC had unreasonably commenced the litigation and had unreasonably refused to accept an offer of compromise; and
(v) the appellants should be given credit for what the primary Judge described as "meaningful co-operation in the investigation" and conduct which "enabled the trial to be conducted efficiently".
26 The fourth contention can be disposed of immediately. The appellants made an offer of compromise on 6 December 1999, after the ACCC had instituted the proceedings. While the offer, if accepted, would have involved concessions on the part of Rural Press and Bridge Printing, the former was prepared to accept a pecuniary penalty of only $200,000 (compared with $400,000 ultimately imposed) and neither corporation was prepared to consent to a declaration that their conduct had contravened s 45(2)(a)(ii) or s 45(2)(b)(ii) of the TP Act. Moreover, the offer required the proceedings against Mr Law and Mr McAuliffe to be dismissed. Having regard to the ultimate outcome of the proceedings, the appellants' offer of compromise did not make it unreasonable for the ACCC to continue the proceedings. Nor was it unreasonable for the ACCC to institute the proceedings.
27 We place little weight on the appellants' second contention. We have insufficient material before us to determine whether the ACCC was exclusively responsible for the primary Judge having to hold a hearing to determine the appropriate form of orders. In any event, that hearing was a minor component of a substantial case.
28 Nor do we think that the third and fifth contentions justify, of themselves, a departure from the general principle that a successful party should be awarded its costs. It is true that the ACCC did not persuade the primary Judge to order the very substantial pecuniary penalties it proposed or to require the corporate appellants to undertake a compliance program. But there is nothing to indicate that the appellants offered, after the judgment on liability had been handed down, to accept penalties no less severe than those ultimately imposed by his Honour. The primary Judge obviously took the view that the ACCC's failure on the compliance program issue was insufficient to justify denying it an order for payment of its costs of the proceedings. We take no different view.
29 In the judgment of 16 July 2002, we observed (at [166]) that the primary Judge should not have taken into account the orderly conduct of the trial in fixing penalties "although it is something to which regard might be had in relation to costs orders". We did not say, however, that the conduct of the trial in this case warranted a reduction in the costs that the appellants should otherwise pay to the ACCC. By co-operating in the investigation and facilitating an expeditious trial, the appellants have received the benefit of the reduction in costs associated with a shorter trial and fewer contested issues. We do not think that, in the circumstances of the present case, the ACCC should be deprived of costs properly incurred in the conduct of a hearing simply because the length of the hearing was reduced by reason of the sensible and co-operative attitude of the appellants.
30 It seems to us that the most substantial argument available to the appellants is that they have succeeded in the appeal on two of the three substantial issues debated at the trial. However, we think that there is considerable force in the ACCC's submission that at the trial the evidence on contested factual questions was relevant to all the pleaded causes of action. Had the ACCC confined its case at trial to contraventions of ss 45(2)(a)(ii) and 45(2)(b)(ii) of the TP Act, it is unlikely that a great deal of the time devoted to the evidence would have been saved. In that respect the trial stands in a somewhat different position to the appeal.
31 In our view, the primary Judge's orders with respect to costs should not be disturbed.
AMENDMENTS TO THE ORDERS
32 An appeal to the Full Court from a judgment of a single Judge of the Court is by way of rehearing. Accordingly, the Full Court can substitute its own decision based on the facts and the law as they then stand: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, at 181, per Gaudron, McHugh, Gummow and Hayne JJ; Western Australia v Ward [2002] HCA 28; (2002) 191 ALR 1, at 34, per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
33 Section 28(3) of the Federal Court Act authorises this Court, exercising appellate jurisdiction, to vary the orders made by the primary Judge in favour of those respondents to the appeal who have not appealed from the orders, namely Waikerie Printing and Mr Taylor, if to do so gives effect to the law as determined by the Court in its judgment. There is no need to consider whether the making of such orders requires notice to be given to Waikerie Printing and Mr Taylor, since they have been given notice and consent to the amended form of the orders. No issue arises as to affording the appellants an opportunity to be heard, since they consent to the proposed amendments. For its part, the ACCC accepts that the proposed amendments reflect the reasoning of the judgment of 16 July 2002. Accordingly, it is appropriate to amend the orders in the manner proposed by the appellants.
34 We note that the amendments proposed by the appellants delete par 6 of the orders made by the primary Judge insofar as it enjoins Waikerie Printing from engaging in conduct that would, in effect, contravene ss 45(2)(a)(i) and 45(2)(b)(i) of the TP Act. Thus the amendments meet the concern of Waikerie Printing and Mr Taylor that par 6 of the orders made by the primary Judge should be modified.
35 We do not consider it appropriate to alter the penalties imposed by the primary Judge on Waikerie Printing and Mr Taylor. They did not appeal from the orders imposing those penalties and they have advanced no argument that would suggest that this Court would impose different penalties if it was to exercise afresh the discretion in relation to penalties.
ORDERS
36 In conformity with this judgment, we propose to amend par 3 of the orders made by this Court on 16 July 2002. We think that the clearest course is to set aside the orders made by the primary Judge on 23 March 2001 and substitute fresh orders. Accordingly, we propose to amend par 3 of the orders made by the Full Court on 16 July 2002 so that it reads as follows:
"3. The orders and declarations made by the primary Judge on 23 March 2001 be set aside and in lieu thereof the following orders and declarations be made:
A. AGAINST EACH OF THE FIRST, SECOND AND FIFTH RESPONDENTS
1. A declaration that each of the First, Second and Fifth Respondents, by themselves, their servants or agents, contravened sections 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth) ("the Act") by entering into and giving effect to an arrangement which had the purpose and effect of substantially lessening competition in the market for the provision of regional newspapers in the Murray Bridge district.
2. An order that the First, Second and Fifth Respondents, whether by their directors, servants or agents or otherwise howsoever, be restrained for a period of three years, from:
(a) attempting to make or arrive at,
(b) making or arriving at, or
(c) giving effect to:
any contract, arrangement or understanding which contains a provision that has the purpose, or has or is likely to have the effect, of substantially preventing, hindering or lessening competition in the market for the provision of regional newspapers in the Murray Bridge district.
B. AGAINST EACH OF THE THIRD AND FOURTH RESPONDENTS
3. A declaration that each of the Third and Fourth Respondents were directly or indirectly knowingly concerned in or a party to the First and Second Respondents' contraventions of sections 45(2)(a)(ii) and 45(2)(b)(ii) of the Act as set out in paragraph 1 above.
4. An order that the Third and Fourth Respondents be restrained for a period of 3 years from being in any way, directly or indirectly, knowingly concerned in, or party to, the making or arriving at, or the giving effect to, by any person, of any contract, arrangement or understanding which contains a provision that has the purpose, or has or is likely to have the effect, of substantially preventing, hindering or lessening competition in the market for the provision of regional newspapers in the Murray Bridge district.
C. AGAINST THE SIXTH RESPONDENT
5. A declaration that the Sixth Respondent was directly or indirectly knowingly concerned in or a party to the Fifth Respondent's contraventions of sections 45(2)(a)(ii) and 45(2)(b)(ii) of the Act as set out in paragraph 1 above.
6. An order that the Sixth Respondent be restrained for a period of 3 years from being in any way, directly or indirectly, knowingly concerned in, or party to, the making or arriving at, or the giving effect to, by any person, of any contract, arrangement or understanding which contains a provision that has the purpose, or has or is likely to have the effect, of substantially preventing, hindering or lessening competition in the market for the provision of regional newspapers in the Murray Bridge district."
37 Paragraphs 1 and 2 of the orders made on 16 July 2002 will remain unchanged. In addition we propose to make the following orders:
2. The appellants pay 50 per cent of the ACCC's costs of the appeal.
3. The ACCC pay the appellants' costs of the ACCC's appeal and cross-appeal.
I certify that the preceding thirty seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. |
Associate:
Dated: 18 October 2002
Solicitor for the first, second, third and fourth appellants: |
Mr I S Wylie of Blake Dawson Waldron |
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Counsel for the first respondent: |
Mr J S Hilton SC with Mr P J Renehan |
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Solicitor for the first respondent: |
Australian Government Solicitor |
Solicitor for the second and third respondents: |
Mr M R Hutton of Lynch Meyer |
Date of final submissions on costs: |
12 September 2002 |
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Date of judgment: |
18 October 2002 |
S 141 of 2001
SCHEDULE A
THE COURT MAKES THE FOLLOWING ORDERS AND DECLARATIONS:
A. AGAINST EACH OF THE FIRST AND SECOND RESPONDENTS
1. A declaration that each of the First and Second Respondents, by themselves, their servants or agents, contravened section 46(1)(a) of the Trade Practices Act 1974 ("the Act") by taking advantage of their substantial degree of market power in the market for the provision of regional newspapers in the Murray Bridge district for the purpose of eliminating the Fifth Respondent, a competitor of the First and Second Respondents, in that market.
2. A declaration that each of the First and Second Respondents, by themselves, their servants or agents, contravened section 46(1)(c) of the Act by taking advantage of their substantial degree of market power in the market for the provision of regional newspapers in the Murray Bridge district for the purpose of deterring or preventing the Fifth Respondent from engaging in competitive conduct in that market.
3. An order that the First and Second Respondents, whether by their directors, servants or agents or otherwise howsoever, be restrained for a period of three years from taking advantage of their market power in the market for the provision of regional newspapers in the Murray Bridge district by threatening a potential competitor or competitor in that market that the First Respondent and/or Second Respondent will introduce a regional newspaper into a district in which a potential competitor or competitor publishes a regional newspaper for the purpose of:
(a) deterring or preventing a potential competitor or competitor from engaging in competitive conduct in the said market or in any other market in Australia; or
(b) eliminating a potential competitor or competitor in the said market or in any other market in Australia.
B. AGAINST EACH OF THE FIRST, SECOND AND FIFTH RESPONDENTS
4. A declaration that each of the First, Second and Fifth Respondents, by themselves, their servants or agents, contravened sections 45(2)(a)(i) and 45(2)(b)(i) of the Act by entering into and giving effect to an arrangement which contained an exclusionary provision within the meaning of section 4D of the Act.
5. A declaration that each of the First, Second and Fifth Respondents, by themselves, their servants or agents, contravened sections 45(2)(a)(ii) and 45(2)(b)(ii) of the Act by entering into and giving effect to an arrangement which had the purpose and effect of substantially lessening competition in the market for the provision of regional newspapers in the Murray Bridge district.
6. An order that the First, Second and Fifth Respondents, whether by their directors, servants or agents or otherwise howsoever, be restrained for a period of three years, from
(a) attempting to make or arrive at;
(b) making or arriving at; or
(c) giving effect to:
any contract, arrangement or understanding which contains a provision that:
(i) has the purpose of preventing, restricting or limiting the Fifth Respondent and/or any person who is or would otherwise be likely to be in competition with the First Respondent and/or Second Respondent, from entering into or competing in the market for the provision of regional newspapers in the Murray Bridge district; or
(ii) has the purpose, or has or is likely to have the effect, of substantially preventing, hindering or lessening competition in the market for the provision of regional newspapers in the Murray Bridge district.
C. AGAINST EACH OF THE THIRD AND FOURTH RESPONDENTS
7. A declaration that each of the Third and Fourth Respondents were directly or indirectly knowingly concerned in or a party to the First and Second Respondents' contraventions of sections 46(1)(a), 46(1)(c), 45(2)(a)(i), 45(2)(a)(ii), 45(2)(b)(i) and 45(2)(b)(ii) of the Act as set out in paragraphs 1, 2, 4 and 5 above.
8. An order that the Third and Fourth Respondents be restrained for a period of three years from being in any way, directly or indirectly, knowingly concerned in, or party to, the First Respondent and/or Second Respondent taking advantage of its market power in the market for the provision of regional newspapers in the Murray Bridge district by threatening a potential competitor or competitor in that market that the First Respondent and/or Second Respondent will introduce a regional newspaper into a district in which a potential competitor or competitor publishes a regional newspaper for the purpose of:
(a) deterring or preventing a potential competitor or competitor from engaging in competitive conduct in the said market or in any other market in Australia; or
(b) eliminating a potential competitor or competitor in the said market or in any other market in Australia.
9. An order that the Third and Fourth Respondents be restrained for a period of three years from being in any way, directly or indirectly, knowingly concerned in, or party to, the making or arriving at, or the giving effect to, by any person, of any contract, arrangement or understanding which contains a provision that:
(a) has the purpose of preventing, restricting or limiting the Fifth Respondent and/or any person who is or would otherwise be likely to be in competition with the First Respondent and/or Second Respondent, from entering into or competing in the market for the provision of regional newspapers in the Murray Bridge district; or
(b) has the purpose, or has or is likely to have the effect, of substantially preventing, hindering or lessening competition in the market for the provision of regional newspapers in the Murray Bridge district.
D. AGAINST THE SIXTH RESPONDENT
10. A declaration that the Sixth Respondent was directly or indirectly knowingly concerned in or a party to the Fifth Respondent's contraventions of sections 45(2)(a)(i), 45(2)(a)(ii), 45(2)(b)(i) and 45(2)(b)(ii) of the Act as set out in paragraphs 4 and 5 above.
11. An order that the Sixth Respondent be restrained for a period of three years from being in any way, directly or indirectly, knowingly concerned in, or party to, the making or arriving at, or the giving effect to, by any person, of any contract, arrangement or understanding which contains a provision that:
(a) has the purpose of preventing, restricting or limiting the Fifth Respondent, and/or any person who is or would otherwise be likely to be in competition with the Fifth Respondent, from entering into or competing in the market for the provision of regional newspapers in the Murray Bridge district; or
(b) has the purpose, or has or is likely to have the effect, of substantially preventing, hindering or lessening competition in the market for the provision of regional newspapers in the Murray Bridge district.
S 141 of 2001
SCHEDULE B
1. The appeal of the first, second, third and fourth appellants be allowed in part.
2. The appeal and cross-appeal of the Australian Competition and Consumer Commission be dismissed.
3. The following orders and declarations of the primary Judge made on 23 March 2001 ("the Orders") be set aside:
(a) the declarations made in pars 1 and 2 of the Orders;
(b) the order made in par 3 of the Orders;
(c) the declaration made in par 4 of the Orders, insofar as it affects the first and second appellants;
(d) subpar (i) of the order made in par 6 of the Orders, insofar as subpar (i) affects the first and second appellants;
(e) the declaration made in par 7 of the Orders, insofar as it refers to ss 46(1)(a), 46(1)(c), 45(2)(a)(i) and 45(2)(b)(i) of the Trade Practices Act 1974 (Cth) and pars 1, 2 and 4 of the Orders;
(f) the order made in par 8 of the Orders;
4. The appellants file and serve written submissions on the costs of the appeals and cross-appeal within fourteen days.
5. The respondents file and serve written submissions on the costs of the appeals and cross-appeal within seven days from the filing of the appellants' submissions.
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