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Federal Court of Australia |
Last Updated: 16 February 1999
| IN THE FEDERAL COURT OF AUSTRALIA | |
| WESTERN AUSTRALIA DISTRICT REGISTRY | WAG 71 OF 1998 |
|
BETWEEN: | AUSTRLAIAN COMPETITION AND CONSUMER COMMISSION
Applicant |
|
AND: | REAL ESTATE INSTITUTE OF WESTERN AUSTRALIA INCORPORATED
First Respondent
MICHAEL GRIFFITH Second Respondent
SOUTH WEST REGIONAL COLLEGE OF TAFE Third Respondent
WEST COAST COLLEGE OF TAFE Fourth Respondent
CONAL PATRICK O'TOOLE Fifth Respondent |
2 Page 13, paragraph 23, line 6 delete "the fact of a".
................................
Associate:
2 February 1999
Australian Competition & Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18
TRADE AND COMMERCE - trade practices - injunctions and orders - undertakings and final orders by consent - power of court in respect of injunctive orders - conduct covered by injunctive orders - nexus to contravention - trade practices compliance programmes - limitations on scope of appropriate order.
Real Estate and Business Agents' Act 1978 (WA)
Trade Practices Act 1974 (Cth)
Thomson Australia Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150 cited
OD Transport Pty Ltd v WA Railways Commission (1987) 13 FCR 500 referred to
United States v Gillett Co 406 F. Supp 713 (D. Mass 1975) discussed
Trade Practices Commission v Milreis Pty Ltd (No 2) [1978] FCA 20; (1978) 32 FLR 234 cited
Trade Practices Commission v Hymix Industries Pty Ltd (1995) ATPR 41-369 cited
Australian Competition and Consumer Commission v Pioneer Concrete (Qld) Pty Ltd (1996) ATPR 41-457 cited
Trade Practices Commission v Monier Roofing Ltd (1996) ATPR 41-464 cited
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 141 ALR 640 cited
Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd (1997) 148 ALR 339 discussed
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v REAL ESTATE INSTITUTE OF WESTERN AUSTRALIA INCORPORATED, MICHAEL GRIFFITH, SOUTH WEST REGIONAL COLLEGE OF TAFE, WEST COAST COLLEGE OF TAFE and CONAL PATRICK O'TOOLE
WAG 71 OF 1998
FRENCH J
18 JANUARY 1999
PERTH
IN THE FEDERAL COURT OF AUSTRALIA BETWEEN: Applicant
AND: First Respondent
MICHAEL GRIFFITH
Second Respondent
SOUTH WEST REGIONAL COLLEGE OF TAFE
Third Respondent
WEST COAST COLLEGE OF TAFE
Fourth Respondent
And
CONAL PATRICK O'TOOLE
Fifth Respondent JUDGE:
WESTERN AUSTRALIA DISTRICT REGISTRY WG71 OF 1998
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
REAL ESTATE INSTITUTE OF WESTERN AUSTRALIA INCORPORATED
FRENCH J DATE OF ORDER: 18 JANUARY 1999 WHERE MADE: PERTH
THE COURT ORDERS THAT:
1. The parties to bring in minutes of any revised consent orders and undertakings within fourteen days of the date of this order.
2. There be liberty to apply on the issue of declaratory relief.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| WESTERN AUSTRALIA DISTRICT REGISTRY | WG71 OF 1998 |
|
BETWEEN: | AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant |
|
AND: | REAL ESTATE INSTITUTE OF WESTERN AUSTRALIA INCORPORATED
First Respondent
MICHAEL GRIFFITH Second Respondent
SOUTH WEST REGIONAL COLLEGE OF TAFE Third Respondent
WEST COAST COLLEGE OF TAFE Fourth Respondent
And
CONAL PATRICK O'TOOLE Fifth Respondent |
JUDGE:
FRENCH J DATE: 18 JANUARY 1999 PLACE: PERTH
AND CONSENT ORDERS
Introduction
3 The cost and delays involved in the litigation process are notorious. Fortunately, only a small proportion of proceedings commenced actually go to trial and judgment. The great majority is settled one way or the other. As a general principle fair and appropriate settlements are encouraged to reduce the burden of litigation on both public and private resources. Courts are frequently asked to play their part by accepting formal undertakings or making orders by consent which prohibit parties from certain conduct or require them to do certain things. Sometimes they are asked to impose agreed pecuniary penalties. In carrying out those functions, Courts are conscious of the public interest in the settlement of cases. They must also be conscious, however, that the laws they apply are public laws. It is in the public interest that, in considering agreements between parties requiring orders of a Court, the Court does not act as a mere rubber stamp. What is proposed must always be scrutinised to determine whether undertakings or consent orders are within power and are appropriate. There is sometimes a tension between these components of the public interest as the present case illustrates.
4 The case concerns the partial resolution of proceedings in relation to agreements made between the Real Estate Institute of Western Australia Incorporated (REIWA) and two Western Australian Colleges for Technical and Further Education. The agreements provided for the licensing to the Colleges of the use of materials, copyright in which was owned by REIWA, for training courses for real estate and business agents. One of the terms of the agreements is said to have involved the fixing of a minimum price for these training courses which price was equal to the price at which REIWA itself provided such courses.
5 Proceedings for unlawful price fixing were commenced by the Australian Competition and Consumer Commission (ACCC) and have been resolved between it and the Colleges and between it and REIWA's solicitor, who was also named as a respondent.
6 The Court is now asked to accept certain undertakings and make certain orders by consent to give effect to that resolution.
The Nature of the Proceedings
7 In these proceedings, commenced on 16 June 1998, the ACCC has made a number of claims for relief in relation to the rules of REIWA and the conduct of its Executive Director in seeking to enforce them. The rules in question provide, inter alia, for prohibitions on franchising agreements between members of the Institute and non-members. They provide for restrictions on dealings between agents and clients who have signed exclusive agency agreements with other agents. They also impose controls on advertising by members of the Institute. The purported application of rules in relation to particular franchise arrangements involving L.J. Hooker at Spearwood, Glen Forest, Port Hedland, Karratha, Roleystone, Willetton and Forrestfield is referred to in the statement of claim and also in relation to Roy Weston Ltd and a promotion by Telstra Corporation under which reward points would accrue to a cardholder under the Telstra Visa card scheme upon the sale of a property owned by the cardholder and listed with an L.J. Hooker franchisee.
8 These claims have not yet been resolved. There is, however, a distinct aspect of the application which has been settled in part. It relates to the provision of education and training for prospective real estate and business agents. The Real Estate and Business Agents' Act 1978 (WA) requires a person seeking registration under the Act as a real estate or business representative in Western Australia, to satisfy the Real Estate and Business Agents' Board that he or she has such qualification as is prescribed. The qualification prescribed under the Real Estate and Business Agents' (General) Regulations 1979 includes the Certificate III in Property Services. That certificate is conferred by the Technical and Further Education (TAFE) Division of the Education Department (WA) or TAFE Colleges established under the Vocational Training Act 1969 (WA). Each of the Colleges is said to be a body corporate and a trading corporation within the meaning of the Trade Practices Act 1974 (Cth) and to have been formerly a College of the TAFE Division of the WA Education Department.
9 The training necessary to achieve a Certificate III in Property Services is provided by:
(i) REIWA
(ii) South West Regional College
(iii) West Coast College
(iv) Central Metropolitan College of TAFE
(v) Midland College of TAFE
(vi) C.Y. O'Connor College of TAFE
10 REIWA and the Colleges are said by the ACCC to be in competition with each other for the provision of training services within a market for the provision of such services within Western Australia. The claim made by the ACCC focuses on agreements made between REIWA and two of the Colleges and agreements proposed by it to the other three.
11 It is said that in July and August 1997, REIWA made agreements with South-West College and West Coast College for terms of one year under which it would licence to each the right to use materials in which it asserted copyright, for the purpose of providing Certificate III training services in Western Australia. It was a condition of the agreements that the training services would not be offered to students at a fee less than $780. Proposed agreements in similar terms are said to have been sent to the other Colleges. At all material times REIWA's provision of such training services was allegedly for a fee of $780 per student.
12 The clauses embodying the minimum price requirement are said to have had the purpose or to have or be likely to have the effect of fixing, controlling or maintaining the price for training services provided by REIWA and the Colleges. They are also said to be provisions to which s 45A of the Trade Practices Act 1974 or the Competition Code of Western Australia applies and that by virtue of that section they have the purpose or effect or would be likely to have the effect of substantially lessening competition in the West Australian Training Market. Alternatively, each of the relevant provisions individually or together with other provisions in the agreement had the effect or was likely to have the effect of substantially lessening competition in that market.
13 By entering into the agreements REIWA, South West College and West Coast College are alleged to have contravened s 45(2)(a)(ii) of the Trade Practices Act 1073 and alternatively that section of the Competition Code of Western Australia. The Executive Director, Mr Griffith, is said to have been directly or indirectly knowingly concerned in the conduct.
14 Reference is also made in the amended statement of claim to Conal O'Toole, a legal practitioner and a partner in the law firm, Corser & Corser. He is said to have prepared the copyright licence agreements with the two Colleges and the other proposed copyright licence agreements on the instructions of REIWA. At all material times it is alleged he was aware of their contents including the pricing clauses. The ACCC claims that he was therefore directly or indirectly knowingly concerned in the contravention of the Act by REIWA and the two Colleges.
15 It is the claim against the two Colleges and O'Toole which has been resolved and undertakings and consent orders submitted to the Court to give effect to that resolution. The question for the Court is whether it should make orders in the terms proposed.
The Consent Orders Against the Colleges
16 South-West College and West Coast College, being the third and fourth respondents respectively, the consent orders proposed in relation to them are in the following terms:
"The Third Respondent by its Counsel undertakes to the Court that:The O'Toole Consent Order
The Third Respondent, by its officers, employees, agents or otherwise will not enter into or induce or attempt to induce any other party to enter into a contract, arrangement or understanding fixing, controlling or maintaining, or providing for the fixing, controlling, or maintaining of the price for training services to be supplied by each of the parties to the contract, arrangement or understanding or the proposed contract, arrangement or understanding in competition with each other.
The Fourth Respondent by its Counsel undertakes to the Court that:
The Fourth Respondent, by its officers, employees, agents or otherwise will not enter into or induce or attempt to induce any other party to enter into a contract, arrangement or understanding fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of the price for training services to be supplied by each of the parties to the contract, arrangement or understanding or the proposed contract, arrangement or understanding in competition with each other.
BY CONSENT THE COURT DECLARES THAT:
1. Each of:
(a) clause 4(2) of the Licence of Copyright Agreement dated 17 July 1997 made between the First Respondent and the Third Respondent; and
(b) clause 4(2) of the Licence of Copyright Agreement dated 4 August 1997 made between the First Respondent and the Fourth Respondent
is a provision of a contract or arrangement which had the purpose, or had or was likely to have had the effect, of fixing, controlling or maintaining the price for the supply of training services by the respective parties to the contract or arrangement in competition with each other and which, by virtue of s45A(1) of the Trade Practices Act 1974 ("the Act") or, alternatively, s45A(1) of the Competition Code of Western Australia ("the Competition Code"), had the purpose, or had or was likely to have had the effect, of substantially lessening competition.
2. The Third Respondent in making a contract or arrangement with the First Respondent, namely the Licence of Copyright Agreement dated 17 July 1997, containing as a provision Clause 4(2) has contravened section 45(2)(a)(ii) of the Act or, alternatively, has contravened Section 45(2)(a)(ii) of the Competition Code.
3. The Fourth Respondent in making a contract or arrangement with the First Respondent, namely the Licence of Copyright Agreement dated 4 August 1997, containing as a provision Clause 4(2) has contravened section 45(2)(a)(ii) of the Act or, alternatively, has contravened Section 45(2)(a)(ii) of the Competition Code.
BY CONSENT THE COURT ORDERS THAT:
4. The Third and Fourth Respondents cause to be published a Notice in the terms of annexure "A" hereto in the following:
(A) the next available issue of the Department of Training publication "UPDATE" and further that such Notice be:
(i) of a size not less than half a page; and
(ii) in a text which is in a type size not less than 12 point; and
(B) the Department of Training web page for a period of 6 months.
5. The Third and Fourth Respondents implement a Trade Practices Compliance Programme in accordance with the terms of Annexure "B".
6. The proceedings otherwise be discontinued as between the Applicant and the Third and Fourth Respondents.
7. There be no order as to costs as between the Applicant and the Third and Fourth Respondents.
ANNEXURE A "All TAFE colleges must increase their awareness of the application of trade practices laws to their business activities", said Mr X from the Western Australian Department of Training.
PUBLIC NOTICE
The restrictive trade practices provisions of the Trade Practices Act include a prohibition against entering into contracts, agreements, or arrangements which lessen competition. These provisions apply to all TAFE colleges.
A recent Federal Court action by the Australian Competition and Consumer Commission involved contractual arrangements entered into by two TAFE colleges which set a minimum fee for the provision of a training course. The colleges co-operated fully with the ACCC and undertook to the Federal Court of Australia not to enter into price fixing agreements in the future. The matters were settled to the satisfaction of the ACCC and the colleges by the making of suitable court orders by consent.
"All TAFE colleges will soon implement trade practices compliance programmes which will assist colleges in identifying contractual and other arrangements which may potentially breach the provisions of the Trade Practices Act", said Mr X.
Persons who require further information in relation to trade practices matters should contact Mr Y of the WA Department of Training.
ANNEXURE B (a) The Third Respondent ("WCC") and the Fourth Respondent ("SWRC") will implement a compliance programme which will comply with Australian Standard on Compliance Programmes AS3806 and be tailored to suit WCC/SWRC in particular circumstances.
TRADE PRACTICES CORPORATE
COMPLIANCE PROGRAMME
(b) WCC/SWRC will designate an officer as a Trade Practices Compliance Officer. The Trade Practices Compliance Officer will receive training in trade practices law. The Trade Practices Compliance Officer need not have legal qualifications. The Trade Practices Compliance Officer will be designated or appointed within 10 weeks of the date of this order.
(c) WCC/SWRC will ensure that the programme is approved, by an independent external auditor with appropriate knowledge of trade practices law prior to implementation.
(d) The compliance programme will be implemented within 14 weeks of the date of this order.
(e) WCC/SWRC will require the Trade Practices Compliance Officer to review all current contracts which WCC/SWRC have executed and proposed contracts which WCC/SWRC intend to execute to ensure that the provisions of those contracts comply with the provisions of Part IV of the Trade Practices Act 1974.
(f) WCC/SWRC will require the Trade Practices Compliance Officer to maintain a documentary record of the contract reviews. Such documentary record will include:
(i) a description of the contract;
(ii) written advice that the provisions of the contract have been reviewed and cleared by the Trade Practices Compliance Officer (including the date on which the contract was reviewed); and
(iii) written advice of any possible contraventions of Part IV of the Trade Practices Act that were identified by the Trade Practices Compliance Officer and the action taken to address these possible contraventions.
(g) WCC/SWRC will ensure that the documentary records of the Compliance and Contract Reviews are available to the Australian Competition and Consumer Commission to be reviewed from time to time for a period of three years from the date of this order. Such records are to be available from one week after the review date and will be kept for a period of 3 years after that date. Such records will be provided to the Australian Competition and Consumer Commission within 5 working days of written request for those records.
(h) WCC/SWRC will ensure that an independent external consultant with appropriate knowledge of the trade practices law will brief existing members of the governing council and senior management staff in relation to trade practices' matters and the form of the compliance programme. Senior management and staff involved in commercial and contractual operations of the colleges will receive training within three calendar months of the date of the order and on three subsequent occasions over a 3 year period at twelve monthly intervals. Trade Practices matters will be included in the induction training programme for all new staff."
17 The consent order proposed against Mr O'Toole, the Fifth Respondent, was in the following terms:
"The Applicant and the Fifth Respondent consent to orders in the following terms:Consent Orders and Undertakings Under the Trade Practices Act
1. The Fifth Respondent be restrained from being in any way, directly or indirectly, knowingly concerned in, or party to, the entry into, or the inducing or attempting to induce a party to enter into, a contract or arrangement fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for the services to be supplied by each of the parties to the contract or arrangement in competition with each other.
2. The Fifth Respondent undertake a Trade Practices Compliance Programme in accordance with the terms of Annexure "A".
3. The Fifth Respondent pay the Applicant's costs of the proceedings against the Fifth Respondent fixed at $3000.00.
ANNEXURE A (a) The Fifth Respondent will attend a trade practices compliance seminar ("the Seminar") conducted by an independent person with appropriate knowledge of trade practices law within 3 months of this order.
TRADE PRACTICES
COMPLIANCE PROGRAMME
(b) The Seminar will address the provisions of Part IV of the Trade Practices Act 1974 ("the Act") and will address the issue of reviewing contracts and arrangements to ensure that they do not contravene the provisions of Part IV of the Act.
(c) The Fifth Respondent will notify the Applicant within one week of attending the Seminar of his attendance.
(d) In preparing contracts or agreements, the Fifth Respondent will check the terms of that contract or agreement to ensure that it does not contravene the provisions of Part IV of the Act."
18 The Court is now asked to make orders in terms of the consents and to accept the undertakings offered by the respondents. The power to do so derives from s 80 of the Trade Practices Act, the relevant parts of which are:
"80(1) Subject to subsections (1A), (1AAA) and (1B), where, on the application of the Commission or any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:19 In the making of consent orders and the acceptance of undertakings the Court must not exceed its power. Limitations which affect the Court's jurisdiction or power to grant a final injunction must be observed in the acceptance of an undertaking when it is offered as a substitute for a final injunction. The Court cannot put itself in the position of enforcing conduct which it has no capacity to command or compel - Thomson Australia Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150 at 165. What applies to the acceptance of an undertaking, applies also to the making of a consent order. As was said in Thomson Australia Holdings Pty Ltd at 163, "the parties by consent cannot confer power to the Court to make orders which the Court lacks power to make."
(a) a contravention of a provision of Part IV, IVA, IVB or V;
(b) attempting to contravene such a provision;
(c) aiding, abetting, counselling or procuring a person to contravene such a provision;
(d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision;
(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or
(f) conspiring with others to contravene such a provision;
the Court may grant an injunction in such terms as the Court determines to be appropriate.
80(1AA) Where an application for an injunction under sub-section (1) has been made, whether before or after the commencement of this sub-section, the Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind mentioned in sub-section (1).
.
.
.
80(4) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised-
(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind;
(b) whether or not the person has previously engaged in conduct of that kind; and
(c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.
80(5) The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised-
(a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing;
(b) whether or not the person has previously refused or failed to do that act or thing; and
(c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing."
20 The question whether an undertaking is to be accepted or a consent order made is not concluded by a finding that it is within the power of the Court to do so. The power of the Court to make the orders sought is "defined and conferred by public law not by private agreement" - Fiss, "Against Settlement" (1984) 93 Yale Law Journal. In the exercise of that power the Court is not merely giving effect to the wishes of the parties, it is exercising a public function and must have regard to the public interest in doing so. This principle applies to the resolution of private litigation by consent orders or undertakings. A fortiori it applies to proceedings brought by the Crown or public or statutory authorities to enforce the law in the public interest. The Court has a responsibility to be satisfied that what is proposed is not contrary to the public interest and is at least consistent with it. So in OD Transport Pty Ltd v WA Railways Commission (1987) 13 FCR 500, a private action brought under Part IV of the Act, the proposed settlement involved cross undertakings which were themselves reflective of an anti-competitive purpose "foreign to the general scope and purpose of the Act" - supra at 505. Consideration of the public interest, however, must also weigh the desirability of non-litigious resolution of enforcement proceedings.
21 In the United States the new Clayton Act 1974 expressly conditions entry of consent judgments on the Court's determination that entry of such judgment is in the public interest. In so deciding the Court may consider the competitive impact of the judgment and its impact on the public generally and individuals alleging specific injury from the claimed contraventions (s 5e). In considering the application of that provision in United States v Gillett Co 406 F.Supp 713 (D. Mass 1975) it was said:
"It is not the court's duty to determine whether this is the best possible settlement that could have been obtained if, say, the government had bargained a little harder. The court is not settling the case. It is determining whether the settlement achieved is within the reaches of the public interest. Basically [the court] must look at the overall picture not hypercritically, nor with a microscope, but with an artist's reducing glass." (supra at 715)The Senate Judiciary Committee in debating the 1974 provisions recognised, the consent decree is of crucial importance as an enforcement tool since it permits the allocation of resources elsewhere. That consideration is relevant also in the Australian anti-trust setting.
22 A general principle of judicial restraint in the scrutiny of proposed settlements was enunciated early in the history of the Trade Practices Act 1996 . It is not the function of the Court to impede settlements between parties legally represented and able to understand and evaluate the desirability of agreeing to a settlement nor to refuse to give effect to terms of settlement by refusing to make orders or accept undertakings where they are within the Court's jurisdiction and are otherwise unobjectionable - Trade Practices Commission v Milreis Pty Ltd (No 2) [1978] FCA 20; (1978) 32 FLR 234 at 243 (Franki J). This approach extends to the submission of agreed pecuniary penalties - see Trade Practices Commission v Hymix Industries Pty Ltd (1995) ATPR 41-369 (Lockhart J); Australian Competition and Consumer Commission v Pioneer Concrete (Qld) Pty Ltd (1996) ATPR 41-457; Trade Practices Commission v Monier Roofing Ltd (1996) ATPR 41-464. In NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 141 ALR 640, Burchett and Kiefel JJ observed in their joint judgment at 644:
"There is an important public policy involved. When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all the circumstances. The court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, or except in a clear case."23 Similarly in relation to proposed consent orders and undertakings the Court will not simply substitute its own view of the orders or undertakings which it would have made if those proffered fall within the range of an appropriate disposition of the case.
24 Significant elements of the proposed orders have the form of mandatory injunctions. By virtue of s 80(5) the power of the Court to grant an injunction requiring a person to do an act or thing may be exercised whether or not it appears to the Court that the person intends to refuse or fail to do that act or thing and whether or not the person had previously refused or failed to do that act or thing. The Court's power to grant such injunctions is not conditioned upon it being demonstrated that the person the subject of the order has contravened the Act in a way that is specifically addressed by the order. Nevertheless, the power is conditioned upon there having been a contravention or participation in a contravention in one of the various ways set out in s 80(1) and the terms of the injunction must be such as "the Court determines to be appropriate". The latter terminology requires an evaluative judgment in forming the terms of the injunction to be granted. To some extent questions of power and discretion merge under the rubric of appropriateness.
25 Merkel J has said in Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd (1997) 148 ALR 339 at 343 that "...there must be a nexus between the conduct alleged or found to constitute the relevant contraventions and the injunctions granted". See also Australian Competition and Consumer Commission v Office Link (Aust) Pty Ltd (1997) ATPR 41-598. Such a requirement is derived from the evident policy of the Act and the grounding of the power under s 80 upon the fact of a contravention. The question whether there is a sufficient nexus between the order sought and the contravention alleged involves an evaluative judgment. At one level the orders sought may be so remote from the contravention alleged that the question is readily resolved as one of power. Thus an injunction directing implementation of a compliance programme covering all of the provisions of Part V in answer to an alleged contravention of Part IV of the Act might well be thought so remote from the contravention as to be beyond the purpose of s 80 and thus beyond its power. A fortiori such an order might be thought inappropriate even if strictly within power. I respectfully agree with his Honour in relation to that aspect of his approach in the Z-Tek case.
26 A contravention of a basic prohibition of competition law may be indicative of lack of awareness of the requirements of that law generally. To enter into a blatant price fixing arrangement with a competitor might well fall within that category. In such a case an order for a compliance programme providing for development of awareness of the provision contravened and related areas of competition law may be seen as appropriately connected to the contravention and designed to prevent the diversion of public resources to further enforcement action whether in relation to the contravention grounding the claim or contraventions in the same general area. What is "a sufficient nexus" between the conduct the subject of the injunction and the conduct alleged or found to constitute a contravention of a provision of the Act is a matter of judgment. In ACCC v Z-Tek (supra) Merkel J accepted that the making of orders or the acceptance of undertakings to implement a trade practices compliance programme are within the power conferred upon the Court by s 80 of the Trade Practices Act.
27 In that case his Honour considered ordering a compliance programme with respect to Part V generally but declined to do so on the basis of the disparate nature of the provisions of Part V which were as far removed from the contravention complained of as Part V is from the provisions of Part IV. In the event this was a question of judgment of the sufficiency of the nexus between the compliance programme ordered and the particular contravention. I do not take his Honour's approach to preclude the possibility of a compliance programme which covers the provisions of Part IV generally. It is important, however, not to confuse the issues of the relevance of a culture of corporate compliance to fixing a penalty for contravention and the question of what is appropriate for the Court to impose upon a party by way of order disposing of proceedings. There was within the ACCC submission in this case a thread of reasoning that seemed to suggest broad compliance programmes could be ordered because of their general beneficial effects. It may be accepted without reservation that corporate education in trade practices through wide ranging compliance programmes and the fostering of a culture of compliance is good. That does not mean it is appropriate for the Court bounteously to impose the full measure of that good upon a contravener.
28 In addition to the question of power and the question of the public interest there are practical issues to be considered in the formulation of undertakings or consent injunctions. Once an undertaking is accepted by the Court or a consent order made, their breach is enforceable by proceedings for contempt. The undertakings and orders must therefore be formulated with precision so that they are capable of being readily obeyed. Undertakings or orders which are likely to involve vague evaluative judgments or significant debates on their interpretation are not likely to be given the Court's sanction. Similarly, undertakings or orders which are likely to require the Court to be concerned with the ongoing supervision of the conduct of the parties to them will also raise serious questions as to their appropriateness. So in this case the requirement of compliance with the Australian Standards Association standard for compliance programmes imposes standards which are aspirational in their expression and not readily measured in application.
Consideration of the Undertakings Offered and the Orders Sought
29 The undertakings offered by the Colleges cover entry into any contract, arrangement or understanding fixing, controlling or maintaining or providing for the fixing, controlling or maintaining of the price for training services to be supplied by the parties thereto. To that extent the undertakings relate directly to the contravening conduct alleged and are well within the scope of the power conferred by s 80. The undertakings go further and cover conduct by the Colleges constituting inducement or attempted inducement of other parties to enter into such contracts, arrangements or understandings.
30 There was no suggestion in the pleaded case of such conduct on the part of the Colleges. The factual context of the proposed price fixing arrangements as pleaded involved REIWA imposing them as a condition of its licensing the copyright materials to the Colleges for use in their training courses.
31 Nevertheless, there is some nexus between the contraventions complained of and having regard to the provisions of s 80(1AA) I could not conclude that the undertakings proffered are beyond power. Having regard to the agreement between the ACCC and the Colleges in this respect and that there is some relationship between the alleged contravention and the terms of the proposed undertaking, I do not consider I should decline to accept it as inappropriate. There is no harm involved to the public interest and it is within the scope and purpose of the legislation generally.
32 A preliminary question going to the issue of the power to make the orders sought in relation to publication of a notice by the Colleges is whether or not they purport to bind or affect persons who are not parties to these proceedings. The Colleges are required by the proposed orders to publish a notice in the next available issue of the Department of Training publication "Update" and on the Department of Training web page for a period of six months. The terms of the notice set out statements to be made by an officer of the West Australian Department of Training designated "Mr X". It also nominates another officer "Mr Y" of that Department as a contact person to provide further information in relation to trade practices matters.
33 Although under s 11 of the Vocational Educational and Training Act (WA), the relevant State Minister has power to give directions to colleges established under that Act, they each have their own governing councils and managing directors (ss 42, 43 and 46). They are each bodies corporate with power to take and defend proceedings in their corporate name as in the present case (s 36). Neither the State of Western Australia nor the Minister is a party to these proceedings. The publication of materials in the departmental journal, the making of statements by a departmental officer and the designation of a departmental officer as a contact point for trade practices matters are not within the power of the Colleges to direct. It is not therefore appropriate and may well be outside power to require publication of a notice in the terms proposed. This difficulty could be cured by converting Order 4 into a best endeavours order, thus:
"The Third and Fourth Respondents must use their best endeavours to reach agreement with the Minister for Education to cause to be published a notice in the terms of Annexure "A" hereto in the following:......"34 The proposed publication of a notice in the terms of Annexure A is, however, in my opinion beyond the power of this Court for other reasons. It is not a notice of the kind contemplated by s 80A of the Act or otherwise within the general power of the Court to order corrective advertising. There is no element of misleading or deceptive conduct in the allegations contained in the statement of claim filed by the ACCC. The notice is not directed to consumers, but rather to other TAFE colleges, none of whom it is suggested have contravened the Act. The notice assumes a systemic deficiency in understanding and a risk of non-compliance with competition law. The requirement to publish it contemplates that part of the burden of meeting that lack of understanding and deficiency be shouldered by the contraveners, namely two colleges within the system. It may well be that there are issues of compliance to be addressed by newly established, self governing colleges operating in a competitive commercial environment. That does not provide a basis for the Court to make orders requiring contraveners to address that issue which is ultimately sector wide. And even if the power to make such an order could be found within s 80 or within the wide powers conferred upon the Federal Court by s 23, it would, I think, be quite inappropriate. If there is a systemic deficiency that is a matter to be addressed by the Government of Western Australia which, through the relevant minister, can give directions to the colleges. I would add that in my opinion the proposed order also involves an unacceptable intrusion into the proper functions of the Western Australian Government.
35 I am satisfied that the Court has power to make the declarations sought, but the questions whether such declarations should be made in advance of the determination of issues between ACCC and REIWA goes to discretion which will be considered below.
36 The Court is asked to order a compliance programme to be undertaken by the Colleges "in accordance with the terms of Annexure B". That compliance programme incorporates by reference another document, namely, the Australian Standard on Compliance Programmes AS3806 with which the compliance programme is itself to comply.
37 Having regard to the earlier discussion of principles in relation to compliance programmes, the compliance programme proposed in this case should be limited to Part IV of the Act. To that extent par (h) set out in Annexure B to the consent orders in respect of the Colleges is too wide. It should be confined in its application to matters arising under Part IV. That is not, of course, to prevent the Colleges from undertaking, whether by agreement with the ACCC or otherwise, such training programmes for their management and staff as they think appropriate. The requirement for compliance with the ASA standard should be in a best endeavours form. Too many aspects of the standard are expressed by reference to indicators which are aspirational and evaluative and not readily measurable.
38 A question of power arises in relation to the contract review requirement contained in par (e) of Annexure B. That paragraph requires the review of all current contracts which the Colleges have executed and proposed contracts which they intend to execute to ensure compliance with the provisions of Part IV. The range of such contracts is potentially very wide indeed. There may be contracts for the purchase of land, the engagement of staff, the purchase of equipment and a variety of other matters. The contract in this case related to the provision of training services by the Colleges. In my view, the connection between that contravention and the full range of contracts into which a college might enter is far too tenuous to attract the power conferred by s 80 and even if the power is attracted it is not appropriate that such an order be made. The limitation of par (e) to "contracts for or connected with the provision of training services and the pricing of such services" would fall within the scope of s 80. Other elements of the proposed compliance programme appear to be both within power and appropriate.
39 In terms of the consent order proposed against Mr O'Toole, the orders sought are within power. The only question is one of appropriateness in terms of the continuing obligation to check the terms of contracts or agreements prepared by the Fifth Respondent to ensure they do not contravene the provisions of Part IV of the Act. That, of course, would be a part of the respondent's ordinary professional obligation as a legal practitioner. The extent to which it is an obligation imposed by court order however should be limited in time and the ACCC has indicated that it would consent to that requirement being limited to a period of three years from the date of the orders. On that basis, the orders sought against Mr O'Toole and to which he is prepared to consent appear to be both within power and appropriate.
40 Whilst the declarations which are sought against the Colleges appear to be both within power and appropriate, they are declarations of apparently general application. They concern the nature of licensing agreements in respect of which proceedings between the ACCC and REIWA and Mr Griffith have not yet been concluded. I do not think it appropriate at this time to make the declarations in these general terms unless and until there is either a consent by REIWA and Mr Griffith or until there are findings after trial to support the declarations. This should not in any way affect the efficacy of the relief agreed between the ACCC and the other parties.
Summary
41 In summary, I am prepared to accept the undertakings offered by the two Colleges. I am not prepared at this time to make the declarations sought as against them but will allow liberty to apply in relation to those. I am not prepared to make the publication order sought in paragraph 4. I am prepared to order a corporate compliance programme as against the two Colleges subject to the variations I have mentioned in respect of pars (e) and (h) of Annexure B setting out that programme and in relation to compliance with the ASA standard. Paragraph 6 of the consent orders relating to discontinuance of the proceedings will involve an order for leave to discontinue and a notice of discontinuance would then be filed by the ACCC. I am also prepared to note there be no order as to costs as between the ACCC and the Colleges.
42 In relation to Mr O'Toole I am prepared to make orders in terms of the proposed consent order subject to limiting the operation of par (d) of the proposed trade practices compliance programme to a term of three years from the date of the order.
43 In the circumstances the appropriate course would be for the parties to prepare a revised minute of consent orders and undertakings in accordance with these reasons and to submit them to the Court for final approval.
|
I certify that the preceding forty one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable
Justice FRENCH. |
Associate:
Dated: 18 January 1999
|
Counsel for the Applicant: | Mr T. Burrows |
| Solicitor for the Applicant: | Australian Government Solicitor |
| Counsel for the Third and Fourth Respondents: | Mr C. Pruiti |
| Solicitor for the Third and Fourth Respondents: | Crown Solicitor for the State of Western Australia |
|
Counsel for the Fifth Respondent:
Solicitor for the Fifth Respondent: |
Ms A.L. Westwood
Minter Ellison |
|
Date of Hearing: | 22 December 1998 |
| Date of Judgment: | 18 January 1999 |
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