Case: Simpson Ltd v Hubbard Pty Ltd [1982] FCA 210 ; (1982) 69 FLR 392
Outcome: considered
of the earliest cases in which a competitor of the person engaging in misleading and deceptive conduct was successful in claiming damages pursuant to s 82 of the Trade Practices Act is Janssen-Gilag Pty Limited v Pfizer Pty Limited [1992] FCA 437 ; (1992) 37 FCR 526. In dealing with s 82 , Lockhart J said at 529-530: Section 82 is the vehicle for the recovery of loss or damage for multifarious forms of contravention of the provisions of Pts IV and V of the Act. It is important that rules laid down by the courts to govern entitlement to damages under s 82 are not unduly rigid, since the ambit of activities that may cause contraventions of the diverse provisions of Pts IV and V is large and the circumstances in which damage therefrom may arise will vary considerably from case to case. What emerges from an analysis of the cases (and there are many of them) is that they do not impose some general requirement that damage can be recovered only where the applicant himself relies upon the conduct of the respondent constituting the contravention of the relevant provision. Also, a perusal of the provisions of Pts IV and V, the contravention of which gives rise to an entitlement to an applicant for compensation for loss or damage, points to the conclusion that applicants may claim compensation when the contravener's conduct caused other persons to act in a way that led to loss or damage to the applicant. Examples are s 46 which concerns the misuse of market power by corporations; s 47 relating to the practice of exclusive dealing; also s 48 which is concerned with resale price maintenance. As to s 47(1) and (6) relating to third line forcing see Castlemaine Tooheys Ltd v Williams and Hodgson Transport Pty Ltd [1986] HCA 72 ; (1986) 162 CLR 395 (High Court) and (1985) 7 FCR 509 (Full Federal Court). See Hubbards Pty Ltd v Simpson Ltd [1982] FCA 57 ; (1982) 60 FLR 430 and [1982] FCA 210 ; (1983) 69 FLR 392 (on appeal) with respect to s 48. See also Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1987) 18 IR 355 where contraventions of s 45 of the Act were involved and they concerned contracts, arrangements or understandings or restrictive dealings which adversely affected competition. It is by no means clear that the cases to which his Honour referred support the proposition that an applicant may claim compensation when the contravener's conduct caused other persons to act in a way that led to loss or damage to the applicant. Castlemaine Tooheys Ltd v Williams &amp; Hodgson Transport Pty Ltd [1986] HCA 72 ; (1986) 162 CLR 395 , to which his Honour referred, was a claim in respect of alleged exclusive dealing, because a brewery insisted on deliveries to the premises of its retail customers being conducted by its nominated carrier. As the report of the case in the Full Court of this Court in Castlemaine Tooheys Ltd v Williams &amp; Hodgson Transport Pty Ltd (1985) 7 FCR 509 demonstrates, the party claiming damages was itself a transport company, ie one of the very parties excluded by the alleged exclusive dealing requirement. (On appeal in Castlemaine Tooheys , the High Court held that no contravention of s 47 of the Trade Practices Act occurred.) The case did not test, for instance, whether a retailer of beer who insisted on using an excluded transport company for its deliveries would be entitled to claim damages under s 82 of the Trade Practices Act . Hubbards Pty Ltd v Simpson Ltd [1982] FCA 57 ; (1982) 60 FLR 430 and Simpson Ltd v Hubbard Pty Ltd [1982] FCA 210 ; (1982) 69 FLR 392 involved a claim in respect of resale price maintenance, brought by the very dealer whose resale prices the contravening party had attempted to maintain. It did not test the question whether, for instance, a customer of a dealer whose prices had been forced up by a third party engaging in resale price maintenance could sue the contravener directly for loss suffered by the customer. Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1987) 18 IR 355 was a case in which the applicant was the party against whom the primary boycott was mounted, in contravention of s 45 of the Trade Practices Act . That case did not test the question whether a customer of the party boycotted would have been entitled to claim damages from the boycotting parties in respect of its loss of profits through being unable to obtain supplies from the boycotted party.