Australian Competition & Consumer Commission v High Adventure Pty Ltd [2005] FCA 762

Australian Competition & Consumer Commission v High Adventure Pty Ltd [2005] FCA 762

The first respondent contravened s 48 of the Trade Practices Act 1974 (Cth) by engaging in resale price maintenance through conduct falling within s 96(3)(a), s 96(3)(c) and s 96(3)(f), and the second respondent was directly knowingly concerned in that conduct. The consent declarations and injunctions were appropriate only after amendments making them precise and confining them to the proven conduct. Because the respondents had cooperated, had no prior similar findings, were in poor financial circumstances, and the second respondent's conduct was significantly motivated by safety concerns, very low pecuniary penalties of $3,000 and $2,000 were appropriate, together with a remedial...

Jurisdiction
Australia
Judgment Date
10 June 2005
Procedural Posture
Trade Practices Act Proceeding for Declarations, Injunctions, Pecuniary Penalties and Costs Arising From Resale Price Maintenance / Final Judgment and Orders After Agreed Facts and Proposed Consent Declarations and Injunctions; Court Determined Appropriateness of Orders, Penalties and Costs
Outcome
Declarations and injunctions made in amended form; remedial dealership order made; pecuniary penalties imposed; applicant's costs fixed and ordered to be paid by instalments; liberty to apply reserved as to instalments.
Legal Topics
['resale Price Maintenance' 'declarations by Consent' 'injunctions' 'pecuniary Penalties' 'community Service Orders and Probation Orders' 'fixed Costs']
['competition and Consumer Law' 'trade Practices' 'civil Penalties' 'costs'] ['resale Price Maintenance' 'declarations by Consent' 'injunctions' 'pecuniary Penalties' 'community Service Orders and Probation Orders' 'fixed Costs']

Case Brief

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Procedural Posture

Trade Practices Act Proceeding for Declarations, Injunctions, Pecuniary Penalties and Costs Arising From Resale Price Maintenance / Final Judgment and Orders After Agreed Facts and Proposed Consent Declarations and Injunctions; Court Determined Appropriateness of Orders, Penalties and Costs

Legal Issues

  1. 1 ['Whether the proposed consent declarations adequately identified the contraventions of s 48 of the Trade Practices Act 1974 (Cth) by reference to s 96(3)(a), s 96(3)(c) and s 96(3)(f).' "Whether the proposed consent injunctions were sufficiently precise and appropriately confined to the respondents' proven past conduct." "What pecuniary penalties were appropriate for the first respondent's resale price maintenance and the second respondent's knowing involvement." 'Whether a remedial order requiring the first respondent to offer Walkerjet a dealership should be made.' "Whether the Court should fix the applicant's costs and in what amount."]

Ratio Decidendi

The first respondent contravened s 48 of the Trade Practices Act 1974 (Cth) by engaging in resale price maintenance through conduct falling within s 96(3)(a), s 96(3)(c) and s 96(3)(f), and the second respondent was directly knowingly concerned in that conduct. The consent declarations and injunctions were appropriate only after amendments making them precise and confining them to the proven conduct. Because the respondents had cooperated, had no prior similar findings, were in poor financial circumstances, and the second respondent's conduct was significantly motivated by safety concerns, very low pecuniary penalties of $3,000 and $2,000 were appropriate, together with a remedial...

Court Disposition

Declarations and injunctions made in amended form; remedial dealership order made; pecuniary penalties imposed; applicant's costs fixed and ordered to be paid by instalments; liberty to apply reserved as to instalments.

Orders

  • ['Declared that the first respondent, on or about 12 July 2003, engaged in the practice of resale price maintenance in contravention of s 48 of the Trade Practices Act 1974 (Cth) by conduct referred to in s 96(3)(a), s 96(3)(c) and s 96(3)(f).' "Declared that the second respondent, on or about 12 July 2003, was...