Case: Tradestock Pty Ltd v TNT (Management) Pty Ltd (1978) 32 FLR 420
Outcome: cited
Mr Bannon submitted that this construction of s 45(2)(b)(ii) of the TP Act was supported by several matters. &#8226; First, s 45(4) of the TP Act, a deeming provision, assumes that a corporation which is potentially the subject of an allegation that it has contravened s 45(2)(b)(ii) must have been party to the original arrangement. &#8226; Secondly, the definition of ' give effect to ' in s 4 of the TP Act also appears to be drafted on the assumption that only a party to the arrangement can do an act in pursuance of or in accordance with a provision of the arrangement. &#8226; Thirdly, the authorities indicate that a corporation can give effect to a provision in an arrangement independently of that corporation's motive. It would create an unrealistic burden on corporations (so Mr Bannon argued) if their conduct could give effect to an anti-competitive provision in an arrangement without the corporation being a party to the arrangement or realising that its actions constitute a contravention of the TP Act: Tradestock Pty Ltd v TNT (Management) Pty Ltd (1978) 32 FLR 420, at 432, per Smithers J; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2004] FCA 1678 , at [294], per Merkel J. 29 In the present case, I do not think it appropriate to attempt to resolve the question of law presented by Mr Bannon on behalf of AAT. The contention is arguable, but its correctness is by no means self-evident. The authorities recognise, for example, that the expression ' in accordance with ' in the definition of ' give effect to ' in s 4 of the TP Act : 'are intended to cover the situation where what is done is or may be done for reasons other than to implement the understanding.' Tradestock v TNT, at 432. In other words, the expression indicates that a corporation may give effect to an arrangement otherwise than by implementing it. The statutory language may suggest, therefore, that a corporation can give effect to a provision of an arrangement even though it is not party to the arrangement. 30 In any event, the question of construction raised by AAT ultimately may be resolved by reference to the particular facts of the case which, of course have not yet been found. AAT is not in the same situation as a third party which has no involvement with an alleged arrangement but which subsequently does something that happens to be connected to the goals sought to be achieved by the parties to the arrangement. The ACCC alleges that the very point of the two of the pleaded arrangements was to allow the Patrick Respondent and the P&amp;O Corporations to utilise AAT as the vehicle for carrying into effect the anti-competitive elements of the arrangement. AAT may well be in quite a different position to a third party that had no prior knowledge of the arrangement and was never intended to have any particular role to play in implementing the anti-competitive provisions of the arrangement. 31 For these reasons, it is not appropriate to resolve the question of law raised by AAT on the strike out application. The question is arguable and should be resolved at the trial.