Australian Competition & Consumer Commission v Visy Paper Pty Ltd [2001] FCA 1075

Australian Competition & Consumer Commission v Visy Paper Pty Ltd [2001] FCA 1075

The impugned non-competition clauses in the draft agreements proposed by Visy to NPP encompassed both the acquisition of goods and the provision of services. Section 45(6) operates to exclude only that part of an exclusionary provision to which s 47 applies. To the extent the prohibition restricts acquisition of goods, s 45(2)(a)(i) continues to apply. The primary judge erred in holding that s 45(6) provided a complete defence. The ACCC's appeal is allowed and the matter is remitted for determination of penalty.

Parties
Appellant: Australian Competition and Consumer Commission; First Respondent: Visy Paper Pty Ltd; Second Respondent: William Guthridge; Third Respondent: Steven Richards
Jurisdiction
Australia
Judgment Date
10 August 2001
Procedural Posture
Appeal / Judgment on Appeal From Single Judge
Outcome
appeal allowed
Legal Topics
Exclusive Dealing, Exclusionary Provisions, Non Competition Clauses, Attempted Contravention, Acquisition of Goods and Services, Statutory Interpretation
Competition Law Trade Practices Exclusive Dealing Exclusionary Provisions Non Competition Clauses Attempted Contravention Acquisition of Goods and Services Statutory Interpretation

Case Brief

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Parties

Australian Competition and Consumer Commission

Appellant

Visy Paper Pty Ltd

First Respondent

William Guthridge

Second Respondent

Steven Richards

Third Respondent

Procedural Posture

Appeal / Judgment on Appeal From Single Judge

Legal Issues

  1. 1 Whether Visy Paper Pty Ltd attempted to contravene s 45(2)(a)(i) of the Trade Practices Act 1974 (Cth) by proffering draft agreements containing exclusionary provisions
  2. 2 Whether Visy attempted to induce a contravention of s 45(2)(a)(i) via its officers
  3. 3 Proper characterisation of the non-competition clauses—whether they prohibit provision of services, acquisition of goods, or both

Ratio Decidendi

The impugned non-competition clauses in the draft agreements proposed by Visy to NPP encompassed both the acquisition of goods and the provision of services. Section 45(6) operates to exclude only that part of an exclusionary provision to which s 47 applies. To the extent the prohibition restricts acquisition of goods, s 45(2)(a)(i) continues to apply. The primary judge erred in holding that s 45(6) provided a complete defence. The ACCC's appeal is allowed and the matter is remitted for determination of penalty.

Court Disposition

appeal allowed

Orders

  • The appeal be allowed with costs.
  • The matter be remitted to the learned primary Judge to consider the question of what, if any, pecuniary penalty should be imposed for the breaches committed by the respondents.