mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609
Outcome: referred to
In Sammy Russo Supplies Pty Ltd v Australian Safeway Stores Pty Ltd [1998] ATPR 41-641 at 41,094 Goldberg J identified the material facts which need to be pleaded in order to establish a cause of action under s 45(2)(a)(ii) of the Act . His Honour said: "When pleading a cause of action under s 45(2)(a)(ii) it is necessary to identify and plead material facts in relation to: (a) the making of a contract or arrangement or the arriving at an understanding; (b) the identification of a provision in that contract, arrangement or understanding; (c) an allegation that the provision has the purpose, or would have, or be likely to have the effect, of substantially lessening competition; (d) an allegation identifying the relevant market in which competition would be lessened and the manner in which competition would be lessened. If s 45A is relied upon it is still necessary to allege that the parties to the contract, arrangement or understanding are in competition with each other. ... It is not sufficient simply to allege that a provision of a contract had the purpose of substantially lessening competition. It is necessary to allege material facts identifying a relevant market. This is made clear by s 45(3) ..." See also: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609 at 646-7; Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 ; [2004] ATPR 41-996 at 48,671. 18 Section 4E of the Act contemplates that there are both markets for particular goods or services (product markets) and geographic markets: see Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609 at 647.
Case: Re Queensland Co-operative Milling Association Limited (1976) 25 FLR 169
Outcome: cited
The requirement that the geographic area of a market be identified arises from the terms of s 4E. The market must be "in Australia". In economic terms "a market is the field of actual and potential transactions between buyers and sellers amongst whom there can be strong substitution, at least in the long run, if given a sufficient price incentive": see Re Queensland Co-operative Milling Association Ltd (1976) 25 FLR 169 at 190. In the same case a market was also referred to as an "area of close competition between firms": ibid; see also Queensland Wire Industries Pty Ltd v The Broken Hill Proprietary Company Ltd [1989] HCA 6 ; (1989) 167 CLR 177 at 195 (per Deane J); at 199-200 (per Dawson J). Buyers and sellers of goods and services must negotiate and enter transactions in an area in which suppliers are engaged in close competition with each other. That area must be located within Australia. It cannot be assumed that, simply because the relevant services involved moving goods into and out of Australia, the market was located in Australia.
Case: Queensland Wire Industries Pty Ltd v The Broken Hill Proprietary Company Ltd [1989] HCA 6 ; (1989) 167 CLR 177
Outcome: cited
The requirement that the geographic area of a market be identified arises from the terms of s 4E. The market must be "in Australia". In economic terms "a market is the field of actual and potential transactions between buyers and sellers amongst whom there can be strong substitution, at least in the long run, if given a sufficient price incentive": see Re Queensland Co-operative Milling Association Ltd (1976) 25 FLR 169 at 190. In the same case a market was also referred to as an "area of close competition between firms": ibid; see also Queensland Wire Industries Pty Ltd v The Broken Hill Proprietary Company Ltd [1989] HCA 6 ; (1989) 167 CLR 177 at 195 (per Deane J); at 199-200 (per Dawson J). Buyers and sellers of goods and services must negotiate and enter transactions in an area in which suppliers are engaged in close competition with each other. That area must be located within Australia. It cannot be assumed that, simply because the relevant services involved moving goods into and out of Australia, the market was located in Australia.
Case: Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494
Outcome: cited
One of the remedies sought in the application is damages pursuant to s 82 of the Act . Section 82 provides that an applicant may recover the amount of any loss or damage which it suffers as a result of ("by") a respondent's contravention of provisions of the Act (including s 45): see Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494. Loss and damage is pleaded in paragraphs 85-87 of the SASC. There is, therefore, a common "claim" for damages, made by the applicant on behalf of all group members for the purposes of ss 33C and 33H of the FCA Act .
Case: Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135
Outcome: referred to
The result is, to adopt the words of Drummond J in State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42, 834: "The case presently pleaded by the applicant on the element of loss is not such as to make the connection between the conduct complained of and the loss sought to be recovered "sufficiently apparent" in the sense in which that expression was used by Lord Watson in Dow Hager Lawrance v Lord Norreys (1890) 15 App Cas 210 at 221 ... Further explication by the applicant of this part of the claim is therefore required at the pleading stage." See also Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 at 145-6.
Case: Hanover Shoe, Inc. v United Machinery Corp [1968] USSC 185 ; 392 US 481 (1968)
Outcome: cited
United States anti-trust jurisprudence denies a passing on defence to respondents who have dealt directly with applicants. On the other hand, it has been held that indirect purchasers of goods and services have no standing to sue for damages for anti-trust breaches under federal anti-trust law save for some immaterial exceptions: see Hanover Shoe, Inc. v United Machinery Corp [1968] USSC 185 ; 392 US 481 (1968); Illinois Brick Company v Illinois [1977] USSC 168 ; 431 US 720 (1977). The passing on defence is not available to those who have dealt directly with an applicant for a variety of reasons. They include the difficulty in analysing price and output decisions in the "real economic world" and the evidentiary complexities and uncertainties involved in analysing the impact of an overcharge on a firm's profits. The refusal to grant standing to indirect purchasers is justified on the ground that a respondent should not be exposed to multiple liability and double recovery in respect of the same conduct.
Case: Illinois Brick Company v Illinois [1977] USSC 168 ; 431 US 720 (1977)
Outcome: cited
United States anti-trust jurisprudence denies a passing on defence to respondents who have dealt directly with applicants. On the other hand, it has been held that indirect purchasers of goods and services have no standing to sue for damages for anti-trust breaches under federal anti-trust law save for some immaterial exceptions: see Hanover Shoe, Inc. v United Machinery Corp [1968] USSC 185 ; 392 US 481 (1968); Illinois Brick Company v Illinois [1977] USSC 168 ; 431 US 720 (1977). The passing on defence is not available to those who have dealt directly with an applicant for a variety of reasons. They include the difficulty in analysing price and output decisions in the "real economic world" and the evidentiary complexities and uncertainties involved in analysing the impact of an overcharge on a firm's profits. The refusal to grant standing to indirect purchasers is justified on the ground that a respondent should not be exposed to multiple liability and double recovery in respect of the same conduct.
Case: Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd [1994] HCA 61 ; (1994) 182 CLR 51
Outcome: cited
It remains to be seen whether a similar approach will be adopted by Australian courts. In Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd [1994] HCA 61 ; (1994) 182 CLR 51 the High Court held that a "passing on" defence was not available to a defendant to a restitutionary claim where the plaintiff had passed on the burden of excessive workers' compensation premiums. It may be doubted that this decision will have any impact on the liability of the present respondents for damages under s 82 of the Act . This is because restitutionary relief is not designed to provide compensation for loss. Rather it is designed to restore to the plaintiff that which has been transferred to the defendant thereby unjustly enriching the defendant: see The Defence of Passing On , Michael Rush, Oxford, (2006) at 43-7. In any event the applicant accepts that no restitutionary claim is made by it. It is neither necessary nor desirable that I express a concluded view on the issue. If the proceeding continues to trial the issue will, no doubt, be the subject of detailed submissions. It is sufficient, for present purposes, to rule that the respondents are entitled to know the material facts which will, if they are so advised, enable them to defend the proceeding by pleading that the applicant and other group members have not sustained any loss or damage as a result of the respondents' alleged conduct. In order to do this they need to know, at minimum, whether it is alleged that the applicant and the other group members dealt directly or indirectly with one or more of the respondents, whether they were required by a respondent to pay a surcharge for the provision of relevant services and, if they were, whether or not they passed on those charges to a client or customer. Given the width of the group definition and the ambiguities in it which were earlier identified, it is impossible for the respondents, on the present state of the pleadings, adequately to plead a defence based on passing on. The problem is complicated by the fact that, at least in its written submissions, the applicant contemplates that some or all of the group members might have passed on some but not all of any surcharges levied as a result of the alleged cartel conduct of the respondents. 44 The applicant alleges that the respondents gave effect to the agreement to fix and maintain charges, and to conceal their agreement, by imposing certain surcharges. One of these was a fuel surcharge. Another was a war-risk surcharge.
Case: Yamaji v Westpac Banking Corporation (No 2) [1993] FCA 273 ; (1993) 42 FCR 436
Outcome: referred to
In Yamaji v Westpac Banking Corporation (No 2) [1993] FCA 273 ; (1993) 42 FCR 436 at 440 Drummond J held that " s 5(3) should be read as requiring Ministerial consent to be obtained prior to any hearing, final or interlocutory, in an action in which an applicant claiming under s 82 wishes to rely upon extra Australian conduct." The weight of authority, however, favours the view that Ministerial consent is not required prior to the commencement of a proceeding; it is only required before relief in the nature of damages is granted by the Court: see Tycoon Holdings Pty Ltd v Trencor Jetco Inc [1995] FCA 1185 ; [1995] ATPR 41-413 at 40,581; Natureland Parks Pty Ltd v My-Life Corporation Pty Ltd (1996) 67 FCR 237 at 240-241; Stern v National Australia Bank [1999] FCA 1421 at [152] . 58 The language employed by the draftsman in s 5(4) of the Act is very different. If an applicant wishes to rely upon conduct which has occurred outside Australia, in order to obtain relief under s 87 , then it must obtain Ministerial approval before instituting a proceeding: see Yamaji at 440 and Natureland Parks at 240. The applicant seeks to avoid the precondition imposed by s 5(4) by amending its application so as only to seek orders under s 87 of the Act in respect of the conduct of the respondents in Australia. The original application did not contain such a limitation.
Case: Tycoon Holdings Pty Ltd v Trencor Jetco Inc [1995] FCA 1185 ; [1995] ATPR 41-413
Outcome: referred to
In Yamaji v Westpac Banking Corporation (No 2) [1993] FCA 273 ; (1993) 42 FCR 436 at 440 Drummond J held that " s 5(3) should be read as requiring Ministerial consent to be obtained prior to any hearing, final or interlocutory, in an action in which an applicant claiming under s 82 wishes to rely upon extra Australian conduct." The weight of authority, however, favours the view that Ministerial consent is not required prior to the commencement of a proceeding; it is only required before relief in the nature of damages is granted by the Court: see Tycoon Holdings Pty Ltd v Trencor Jetco Inc [1995] FCA 1185 ; [1995] ATPR 41-413 at 40,581; Natureland Parks Pty Ltd v My-Life Corporation Pty Ltd (1996) 67 FCR 237 at 240-241; Stern v National Australia Bank [1999] FCA 1421 at [152] .
Case: Natureland Parks Pty Ltd v My-Life Corporation Pty Ltd (1996) 67 FCR 237
Outcome: referred to
In Yamaji v Westpac Banking Corporation (No 2) [1993] FCA 273 ; (1993) 42 FCR 436 at 440 Drummond J held that " s 5(3) should be read as requiring Ministerial consent to be obtained prior to any hearing, final or interlocutory, in an action in which an applicant claiming under s 82 wishes to rely upon extra Australian conduct." The weight of authority, however, favours the view that Ministerial consent is not required prior to the commencement of a proceeding; it is only required before relief in the nature of damages is granted by the Court: see Tycoon Holdings Pty Ltd v Trencor Jetco Inc [1995] FCA 1185 ; [1995] ATPR 41-413 at 40,581; Natureland Parks Pty Ltd v My-Life Corporation Pty Ltd (1996) 67 FCR 237 at 240-241; Stern v National Australia Bank [1999] FCA 1421 at [152] . 58 The language employed by the draftsman in s 5(4) of the Act is very different. If an applicant wishes to rely upon conduct which has occurred outside Australia, in order to obtain relief under s 87 , then it must obtain Ministerial approval before instituting a proceeding: see Yamaji at 440 and Natureland Parks at 240. The applicant seeks to avoid the precondition imposed by s 5(4) by amending its application so as only to seek orders under s 87 of the Act in respect of the conduct of the respondents in Australia. The original application did not contain such a limitation.
Case: Stern v National Australia Bank [1999] FCA 1421
Outcome: referred to
In Yamaji v Westpac Banking Corporation (No 2) [1993] FCA 273 ; (1993) 42 FCR 436 at 440 Drummond J held that " s 5(3) should be read as requiring Ministerial consent to be obtained prior to any hearing, final or interlocutory, in an action in which an applicant claiming under s 82 wishes to rely upon extra Australian conduct." The weight of authority, however, favours the view that Ministerial consent is not required prior to the commencement of a proceeding; it is only required before relief in the nature of damages is granted by the Court: see Tycoon Holdings Pty Ltd v Trencor Jetco Inc [1995] FCA 1185 ; [1995] ATPR 41-413 at 40,581; Natureland Parks Pty Ltd v My-Life Corporation Pty Ltd (1996) 67 FCR 237 at 240-241; Stern v National Australia Bank [1999] FCA 1421 at [152] .
Case: Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 ; (2003) 130 FCR 317
Outcome: referred to
The second issue, raised by Qantas, relates to the construction of s 33C(1)(a) of the FCA Act . Section 33C(1)(a) conditions the commencement of representative proceedings, inter alia, on there being "7 or more persons [who] have claims against the same person." In Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487 Sackville J (with whom Spender and Hill JJ agreed on this point) held (at 514) that " s 33C(1)(a) requires every applicant and represented party to have a claim against the one respondent or, if there is more than one, against all respondents." In Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 ; (2003) 130 FCR 317 Finkelstein J (at 371-374) expressed the view that s 33C(1)(a) did not impose a requirement that the applicant and the represented parties had to have a claim against all respondents where there were more than one. Carr J held (at 344-346) that, were it necessary for him to decide the point (which it was not), he would decline to follow Philip Morris . Branson J (at 358-9), held that Philip Morris should be followed because it was not clearly wrongly decided. In later cases the Court has applied Philip Morris , taking the view that the observations of Carr and Finkelstein JJ in Bray were obiter: see Johnstone v HIH Limited [2004] FCA 190 at [36] - [39] ; Guglielmin v Trescowthick (No 2) (2005) 220 ALR 515 at 521-522. 63 It may be doubted that this response meets Qantas's objection. In both Johnstone and Guglielmin single judges held that they were bound to follow Philip Morris . In Bray Branson J held at (360-361) that the requirements of s 33C(1)(a) had not been satisfied notwithstanding the existence of claims made by the applicant and represented parties for declarations and injunctions against all respondents. Moreover, for reasons already given, the SASC does not plead an unambiguous damages claim against all respondents. It is also to be noted that it has been suggested that the word "claim" in s 33C(1)(a) is not, in any event, intended to refer to the relief sought by an applicant but rather to the material facts and the legal basis of the action: see Bray at 371-2 (per Finkelstein J). 64 In order for representative proceedings to be constituted properly a statement of claim must demonstrate that each of the conditions imposed by s 33C(1) has been satisfied: see Philip Morris at 514. If this is not done then the pleading is liable to be struck out although this is not an inevitable consequence if an amendment can cure the difficulty: see Bray at 361 (per Branson J).
Case: Johnstone v HIH Limited [2004] FCA 190
Outcome: referred to
The second issue, raised by Qantas, relates to the construction of s 33C(1)(a) of the FCA Act . Section 33C(1)(a) conditions the commencement of representative proceedings, inter alia, on there being "7 or more persons [who] have claims against the same person." In Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487 Sackville J (with whom Spender and Hill JJ agreed on this point) held (at 514) that " s 33C(1)(a) requires every applicant and represented party to have a claim against the one respondent or, if there is more than one, against all respondents." In Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 ; (2003) 130 FCR 317 Finkelstein J (at 371-374) expressed the view that s 33C(1)(a) did not impose a requirement that the applicant and the represented parties had to have a claim against all respondents where there were more than one. Carr J held (at 344-346) that, were it necessary for him to decide the point (which it was not), he would decline to follow Philip Morris . Branson J (at 358-9), held that Philip Morris should be followed because it was not clearly wrongly decided. In later cases the Court has applied Philip Morris , taking the view that the observations of Carr and Finkelstein JJ in Bray were obiter: see Johnstone v HIH Limited [2004] FCA 190 at [36] - [39] ; Guglielmin v Trescowthick (No 2) (2005) 220 ALR 515 at 521-522. 63 It may be doubted that this response meets Qantas's objection. In both Johnstone and Guglielmin single judges held that they were bound to follow Philip Morris . In Bray Branson J held at (360-361) that the requirements of s 33C(1)(a) had not been satisfied notwithstanding the existence of claims made by the applicant and represented parties for declarations and injunctions against all respondents. Moreover, for reasons already given, the SASC does not plead an unambiguous damages claim against all respondents. It is also to be noted that it has been suggested that the word "claim" in s 33C(1)(a) is not, in any event, intended to refer to the relief sought by an applicant but rather to the material facts and the legal basis of the action: see Bray at 371-2 (per Finkelstein J).
Case: Guglielmin v Trescowthick (No 2) (2005) 220 ALR 515
Outcome: referred to
The second issue, raised by Qantas, relates to the construction of s 33C(1)(a) of the FCA Act . Section 33C(1)(a) conditions the commencement of representative proceedings, inter alia, on there being "7 or more persons [who] have claims against the same person." In Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487 Sackville J (with whom Spender and Hill JJ agreed on this point) held (at 514) that " s 33C(1)(a) requires every applicant and represented party to have a claim against the one respondent or, if there is more than one, against all respondents." In Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 ; (2003) 130 FCR 317 Finkelstein J (at 371-374) expressed the view that s 33C(1)(a) did not impose a requirement that the applicant and the represented parties had to have a claim against all respondents where there were more than one. Carr J held (at 344-346) that, were it necessary for him to decide the point (which it was not), he would decline to follow Philip Morris . Branson J (at 358-9), held that Philip Morris should be followed because it was not clearly wrongly decided. In later cases the Court has applied Philip Morris , taking the view that the observations of Carr and Finkelstein JJ in Bray were obiter: see Johnstone v HIH Limited [2004] FCA 190 at [36] - [39] ; Guglielmin v Trescowthick (No 2) (2005) 220 ALR 515 at 521-522. 63 It may be doubted that this response meets Qantas's objection. In both Johnstone and Guglielmin single judges held that they were bound to follow Philip Morris . In Bray Branson J held at (360-361) that the requirements of s 33C(1)(a) had not been satisfied notwithstanding the existence of claims made by the applicant and represented parties for declarations and injunctions against all respondents. Moreover, for reasons already given, the SASC does not plead an unambiguous damages claim against all respondents. It is also to be noted that it has been suggested that the word "claim" in s 33C(1)(a) is not, in any event, intended to refer to the relief sought by an applicant but rather to the material facts and the legal basis of the action: see Bray at 371-2 (per Finkelstein J).
Case: Mark Foy's Ltd v Davies Coop and Company Ltd [1956] HCA 41 ; (1956) 95 CLR 190
Outcome: considered
The next use of the words GO WACKO relied upon as use as a trade mark, is in the expression DOGS GO WACKO FOR SCHMACKOS which appears on the front of Effem's packaging. It is possible for a word or words forming only part of a composite expression to be used as a trade mark. Examples are found in Kolotex Glo Australia Pty Ltd v Sara Lee Personal Products (Australia) Pty Ltd (1993) 26 IPR 1 (" Kolotex ") and Wellness Pty Ltd v Pro Bio Living Waters Pty Ltd (2004) 61 IPR 242. There are also cases in which a word (which is a registered trade mark) appears in an expression used by an alleged infringer where it has been held that such use does not constitute infringement. Pepsico was such a case. Before discussing the two authorities where words within an expression were used as trade marks, it is desirable to refer to the judgment of the High Court in Mark Foy's Ltd v Davies Coop and Company Ltd [1956] HCA 41 ; (1956) 95 CLR 190.