Sodastream Ltd & Anor v. Electronics (Broken Hill) Pty Ltd & Anor [1985] FCA 230

Sodastream Ltd & Anor v. Electronics (Broken Hill) Pty Ltd & Anor [1985] FCA 230

The requirement that conduct had the purpose or likely effect of substantially lessening competition is an element of liability in s.47 of the Trade Practices Act, 1974, and the onus of proof lies upon the party asserting a contravention, not the defendant. Therefore, pleadings asserting contravention absent this allegation are insufficient.

Parties
First Applicant: Sodastream Limited; Second Applicant / Cross Respondent: Sodastream Australia Pty. Limited; First Respondent / Cross Claimant: Electronics (Broken Hill) Pty. Limited; Second Respondent: Ronald John Walsh
Jurisdiction
Australia
Judgment Date
07 June 1985
Procedural Posture
Application to Strike Out Pleadings / Interlocutory
Outcome
Application granted. Relevant paragraphs of the defence and cross-claim struck out. Liberty to amend granted. Costs awarded to applicants.
Legal Topics
Exclusive Dealing, Onus of Proof, Pleadings, Substantial Lessening of Competition
Competition Law Trade Practices Exclusive Dealing Onus of Proof Pleadings Substantial Lessening of Competition

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Parties

Sodastream Limited

First Applicant

Sodastream Australia Pty. Limited

Second Applicant / Cross Respondent

Electronics (Broken Hill) Pty. Limited

First Respondent / Cross Claimant

Ronald John Walsh

Second Respondent

Procedural Posture

Application to Strike Out Pleadings / Interlocutory

Legal Issues

  1. 1 Whether an allegation that conduct had the purpose or likely effect of substantially lessening competition is an essential ingredient of a contravention of s.47 of the Trade Practices Act, 1974
  2. 2 On whom lies the onus of proving the substantial lessening of competition under s.47(10)

Ratio Decidendi

The requirement that conduct had the purpose or likely effect of substantially lessening competition is an element of liability in s.47 of the Trade Practices Act, 1974, and the onus of proof lies upon the party asserting a contravention, not the defendant. Therefore, pleadings asserting contravention absent this allegation are insufficient.

Court Disposition

Application granted. Relevant paragraphs of the defence and cross-claim struck out. Liberty to amend granted. Costs awarded to applicants.

Orders

  • Order that para.20 of the defence and paras.3, 4 and 5 of the cross-claim be struck out.
  • Grant liberty to the respondents and cross-claimant to amend its defence and cross-claim accordingly.