Australian Competition & Consumer Commission v Kokos International Pty Ltd (No 4) [2008] FCA 549

Australian Competition & Consumer Commission v Kokos International Pty Ltd (No 4) [2008] FCA 549

The declared contraventions and injunction were appropriate and within power because Study Overseas Now, through Mr Yeo, made the written agreement with competing education consultants containing price-fixing provisions, and Mr Yeo was knowingly concerned in that contravention. No pecuniary penalty was warranted against Study Overseas Now because it had been re-registered only for the proceedings, had no relevant asset position, and had not changed or implemented its practice after the agreement. A $500 penalty was appropriate for Mr Yeo because of the limited scope of his involvement, absence of implementing conduct, ignorance of the law, personal circumstances and cooperation.

Jurisdiction
Australia
Judgment Date
23 April 2008
Procedural Posture
Trade Practices Proceeding Alleging Price Fixing in the Supply of Education Consulting Services / Revised Reasons and Replacement Consent Orders on Declarations, Injunctions, Pecuniary Penalty and Costs Against the Seventh and Eighth Respondents, With Outstanding Declarations for Other Respondents
Outcome
Orders made on 23 April 2008 were replaced. Declarations were made against the respondents, an injunction was made against Mr Yeo, a pecuniary penalty of $500 was imposed on Mr Yeo, and costs were ordered against the seventh and eighth respondents.
Legal Topics
['price Fixing' 'contracts, Arrangements or Understandings Substantially Lessening Competition' 'education Consulting Services' 'consent Orders' 'pecuniary Penalties' 'deterrence' 'injunctions' 'costs']
['competition and Consumer Law' 'trade Practices' 'civil Penalties'] ['price Fixing' 'contracts, Arrangements or Understandings Substantially Lessening Competition' 'education Consulting Services' 'consent Orders' 'pecuniary Penalties' 'deterrence' 'injunctions' 'costs']

Case Brief

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Procedural Posture

Trade Practices Proceeding Alleging Price Fixing in the Supply of Education Consulting Services / Revised Reasons and Replacement Consent Orders on Declarations, Injunctions, Pecuniary Penalty and Costs Against the Seventh and Eighth Respondents, With Outstanding Declarations for Other Respondents

Legal Issues

  1. 1 ['Whether Study Overseas Now made a written agreement with competing education consultants containing provisions to refrain from offering or accepting discounted tuition fees, monitor conduct, report discounts to a council, and impose a three month ban for discounting.' "Whether Mr Yeo was directly or indirectly knowingly concerned in, or party to, Study Overseas Now's contravention." 'Whether declaratory and injunctive orders proposed by consent were within power and appropriate.' 'What pecuniary penalty, if any, should be imposed on Study Overseas Now and Mr Yeo.']

Ratio Decidendi

The declared contraventions and injunction were appropriate and within power because Study Overseas Now, through Mr Yeo, made the written agreement with competing education consultants containing price-fixing provisions, and Mr Yeo was knowingly concerned in that contravention. No pecuniary penalty was warranted against Study Overseas Now because it had been re-registered only for the proceedings, had no relevant asset position, and had not changed or implemented its practice after the agreement. A $500 penalty was appropriate for Mr Yeo because of the limited scope of his involvement, absence of implementing conduct, ignorance of the law, personal circumstances and cooperation.

Court Disposition

Orders made on 23 April 2008 were replaced. Declarations were made against the respondents, an injunction was made against Mr Yeo, a pecuniary penalty of $500 was imposed on Mr Yeo, and costs were ordered against the seventh and eighth respondents.

Orders

  • ['Declared that Kokos contravened s 45(2)(a)(ii) of the Trade Practices Act 1974 (Cth) by making the oral agreement and the written agreement and contravened s 45(2)(b)(ii) by giving effect to them.' 'Declared that Kokos attempted to make an arrangement or arrive at an understanding with Joseph Woo within the...