Case: ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248
Outcome: considered
The operation of s 80(1) of the TPA was canvassed by the Full Court of this Court in ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 (" ICI "). Lockhart J described s 80(1) as a public interest provision which attracts special considerations; it represents a primary means of ensuring compliance with commercial regulation legislation: at 254-255. After referring to subss 80(4) and (5), Lockhart J said: "Injunctions are traditionally employed to restrain repetition of conduct. A statutory provision that enables an injunction to be granted to prevent the commission of conduct that has never been done before and is not likely to be done again is a statutory enlargement of traditional equitable principles. But this is because traditional doctrine surrounding the grant of injunctive relief was developed primarily for the protection of private proprietary rights. Public interest injunctions are different. Parts IV and V of the Act involve matters of high public policy. Parts IV and V relate to practices and conduct that legislatures throughout the world in different forms and to different degrees, have decided are contrary to the public interest (contracts, arrangements or understandings affecting competition adversely (s 45)), the misuse of market power (s 46) , the practice of exclusive dealing (s 47) , resale price maintenance (s 48) , price discrimination (s 49) , anti-competitive mergers (s 50) and unfair practices with respect to consumers (Pt V). These are legislative enactments of matters vital to the presence of free competition and enterprise and a just society." In his Honour's view, the section would in an appropriate case authorise the Court to grant an injunction against a respondent preventing him in engaging in conduct which is similar to the conduct which constituted, or would constitute, a contravention of the Act : at 261. Lockhart J also agreed (at 261) with the reasoning of Barwick CJ in Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69 ; (1972) 127 CLR 617 at 632 that in an appropriate case the court may grant an injunction to restrain the respondent from engaging in the practice of resale price maintenance notwithstanding that only some of the acts falling within s 96(3) were found to have been so committed. 68 In ACCC v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 at 202 at [D]-[E], after referring to these passages in ICI , Merkel J said: "The width of the power conferred by s 80 and its public interest character obviously give the Court great amplitude in determining appropriate injunctive orders in a particular case. However there are limitations on the Court's power under the section. Confinement of the power by reference to the scope and purpose of the TPA, and in particular s 80 , is one limitation on the power. However, there are at least two further limitations. The power to make orders under s 80 is only enlivened in a proceeding which alleges that there has been a contravention of a provision of Pt IV , IVA or V of the TPA. As was said by Gummow J in ICI at 267, the terms of an injunction granted under s 80 must, on their face, operate upon a range of conduct which has 'the relationship required by s 80 with contravention of the Act . Irrespective of whether the injunction is sought or granted under s 80(1) or 80 (1AA) there must be a nexus between the conduct alleged or found to constitute the relevant contraventions and the injunctions granted." 70 Most recently, in Foster v Australian Competition and Consumer Commission [2006] FCAFC 21 , a Full Court (comprising Ryan, Finn and Allsop JJ) noted the apparent tension between the view expressed by Lockhart and Gummow JJ in ICI . Their Honours said at [30]-[31]: "His Honour's reference to terms having 'an operation outside the boundaries of s 80 ' is no more than a paraphrase of the actual words of the subsection 'such terms as the Court determines to be appropriate.' That paraphrase, we consider with respect, does not illuminate the amplitude which should be given, as a matter of construction, to the grant of power. In our view, a more helpful guide to resolving the question of construction is afforded by this observation, also from ICI v Trade Practices Commission , of Lockhart J (with whom French J agreed) at 256; 'In my opinion subss (4) and (5) are designed to ensure that once the condition precedent to the exercise of injunctive relief has been satisfied (ie contraventions or proposed contraventions of Pt IV or V of the Act ), the court should be given the widest possible injunctive powers, devoid of traditional constraints, though the power must be exercised judicially and sensibly.' This approach of Lochkhart J accords with the view often expressed by the High Court that discretions or powers entrusted to Courts should be read liberally for the relevant statutory purpose, without making implications or imposing limitations not found in the express words: Australian Memory Pty Ltd v Brien [2000] HCA 30 ; (2000) 200 CLR 270 at [77] and see generally for the cases Hewlett Packard v GE Capital [2003] FCAFC 256 ; (2003) 203 ALR 51 at [187] ." Thus, the Full Court preferred the wider view described by Lockhart and French JJ in ICI to the narrower view which the appellant in Foster sought to found upon the judgment of Gummow J.