Trade Practices Commission v David Jones Pty Limited [1986] FCA 698

Trade Practices Commission v David Jones Pty Limited [1986] FCA 698

Although the respondents' price-fixing conduct contravened the Trade Practices Act 1974 and required penalties marking the Court's disapproval and deterrence, the circumstances were exceptional: the conduct was isolated, not deliberate or flagrant, involved limited competitors, was prompted by attempts to stabilise cut-throat discounting rather than to increase profits at consumers' expense, caused no proven direct loss other than loss of exceptionally low discount prices, and no respondent had previous similar contraventions. A single penalty for the related contraventions was appropriate. Injunctions were refused because repetition was unlikely and the public interest did not require them.

Jurisdiction
Australia
Judgment Date
08 July 1986
Procedural Posture
Application by Trade Practices Commission for Pecuniary Penalties, Injunctions and Costs for Contraventions of the Trade Practices Act 1974 / Reasons and Orders on Penalties, Injunctions and Costs After Earlier Findings of Contravention
Outcome
Judgment entered for the applicant on specified contraventions and involvement; all other claims dismissed; pecuniary penalties and costs orders made; injunctions refused.
Legal Topics
['price Fixing Understanding' 'pecuniary Penalties' 'injunctions' 'costs' 'knowingly Concerned in Contravention']
['trade Practices' 'competition Law'] ['price Fixing Understanding' 'pecuniary Penalties' 'injunctions' 'costs' 'knowingly Concerned in Contravention']

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Procedural Posture

Application by Trade Practices Commission for Pecuniary Penalties, Injunctions and Costs for Contraventions of the Trade Practices Act 1974 / Reasons and Orders on Penalties, Injunctions and Costs After Earlier Findings of Contravention

Legal Issues

  1. 1 ['What pecuniary penalties should be imposed for contraventions of sub.para.45(2)(a)(ii) and sub.para.45(2)(b)(ii) of the Trade Practices Act 1974.' 'Whether separate penalties should be imposed for arriving at and giving effect to the relevant understanding.' 'Whether injunctions restraining future contravening conduct were necessary or appropriate.' 'What costs orders should be made, including in relation to Russwat Nominees Pty. Limited and its directors.']

Ratio Decidendi

Although the respondents' price-fixing conduct contravened the Trade Practices Act 1974 and required penalties marking the Court's disapproval and deterrence, the circumstances were exceptional: the conduct was isolated, not deliberate or flagrant, involved limited competitors, was prompted by attempts to stabilise cut-throat discounting rather than to increase profits at consumers' expense, caused no proven direct loss other than loss of exceptionally low discount prices, and no respondent had previous similar contraventions. A single penalty for the related contraventions was appropriate. Injunctions were refused because repetition was unlikely and the public interest did not require them.

Court Disposition

Judgment entered for the applicant on specified contraventions and involvement; all other claims dismissed; pecuniary penalties and costs orders made; injunctions refused.

Orders

  • ['Judgment entered in favour of the applicant that David Jones (Australia) Pty. Limited, Russwat Nominees Pty. Limited and Myer S.A. Stores Limited each contravened sub.para.45(2)(a)(ii) and sub.para.45(2)(b)(ii) of the Trade Practices Act 1974, and that Zellen Pty. Ltd. contravened sub.para.45(2)(a)(ii) of the...