Case: BMW Australia Ltd v Australian Competition and Consumer Commission (2004) 207 ALR 452
Outcome: referred to
a question which has arisen in the cases, and which arises in this case, is the Court's power to make an order or accept an undertaking requiring an external audit of a compliance programme or, alternatively, the appropriateness of so doing. It seems that such an order may not be made under s 86C: BMW Australia Ltd v Australian Competition and Consumer Commission (2004) 207 ALR 452 (Gray, Goldberg and Weinberg JJ) at 468 [51]. It is important to have a clear understanding of what is meant by an external audit of a compliance programme. In my opinion, an order or undertaking which leaves the definition of the major obligations undertaken by a respondent to a third party or which makes the question of whether there has been a breach turn on the assessment or opinion of a third party is beyond power, or at the very least inappropriate. A court should not grant an injunction leaving the scope of the injunction to be determined by a third party and should not accept an undertaking to similar effect. Such an injunction or undertaking would not be in clear and unambiguous terms and it would involve an impermissible delegation of the Court's power to formulate the terms of the order and to determine the question of breach. None of this is to say that an order or undertaking might not include a provision for an external audit providing the major obligations are defined and it is clear that the question of breach is for the court to determine, having regard to the facts and the terms of the order or undertaking. I turn now to consider the particular undertakings proffered in this case. The first undertaking which is proffered by the corporate respondents is in the following terms: of Auspine Limited, Geo J Bone &amp; Sons Pty Ltd and JAG Timber Products Pty Ltd, for a period of 5 years, whether by its directors, servants or agents or otherwise howsoever, undertakes to the Court to refrain from: making or attempting to make any contract or arrangement, or arriving at or attempting to arrive at any understanding, with a competitor or competitors containing a provision or provisions that:- any or all of them would no longer provide estimating services without charge but would pass on to the customer any charges incurred at cost; any or all of them would procure or attempt to procure or induce other competitors to make an arrangement or arrangements, alternatively to arrive at an understanding or understandings, containing a provision to the same effect, but including such other competitors or some of them, as the provision set out in subparagraph (i) above; or (iii) any or all of them would charge customers for estimating services at a particular price or particular prices or in accordance with or by reference to a particular mechanism, process or procedure by which the price or prices of estimating services to be charged by all or any of them would be fixed or controlled. giving effect to any such contract, arrangement or understanding with a competitor or competitors containing a provision or provisions that:- any or all of them would no longer provide estimating services without charge but would pass on to the customer any charges incurred at cost; any or all of them would procure or attempt to procure or induce other competitors to make an arrangement or arrangements, alternatively to arrive at an understanding or understandings, containing a provision to the same effect, but including such other competitors or some of them, as the provision set out in subparagraph (i) above; or any or all of them would charge customers for estimating services at a particular price or particular prices or in accordance with or by reference to a particular mechanism, process or procedure by which the price or prices of estimating services to be charged by all or any of them would be fixed or controlled.'