Case: Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd (Administrators Appointed) [2004] FCA 376 (2004); ATPR 41-983
Outcome: referred to
In this proceeding the Australian Competition and Consumer Commission ('the ACCC') sought various remedies against the second respondent ('Mr Carney') for contraventions of the Trade Practices Act 1974 (Cth) ('the Act'). The relief sought included declarations that Mr Carney had knowingly been concerned in contraventions of ss 46 and 47 of the Act and the imposition of pecuniary penalties for contraventions of those provisions. The ACCC alleged that Mr Carney was a person knowingly concerned in contraventions of the Act by the first respondent of which he was, at relevant times, the Managing Director. The proceeding, in so far as it involved the first respondent, was dealt with by Heerey J: see Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd (Administrators Appointed) [2004] FCA 376 ; (2004) ATPR 41-983. The circumstances in which the contraventions by the first respondent occurred (and in which it was alleged Mr Carney was knowingly concerned) are explained in his Honour's reasons at [5] to [19] and need not be repeated here. Suffice to say the contraventions were serious. They related to the marketing of sporting products to supporters of Australian Football League clubs and involved attempts by the first respondent (which were to a significant extent successful) to exclude competitor's products from retail outlets. The ACCC discontinued the proceeding against the third respondent and he gave evidence against Mr Carney. 2 The trial of the proceeding between the ACCC and Mr Carney commenced on 28 August 2006 and was estimated at that time to take three weeks. Mr Carney represented himself and cross-examined each of the witnesses who was called by the ACCC. On 15 September 2006, at the end of the three week period allotted for the trial, only about half of the ACCC's witnesses had given evidence. It was estimated that up to a further five weeks would be necessary to complete the hearing. The further hearing of the proceeding was adjourned until 27 November 2006. Before the trial was adjourned the parties had agreed to the suggestion that the matter be referred for mediation by a Court appointed mediator. When the hearing resumed on 27 November 2006 the parties announced that the mediation had been successful and invited the Court to make a declaration and orders in accordance with agreed minutes. Those minutes read: 'THE COURT DECLARES THAT: 1. Between September or October 1999 and November 2000, the second respondent was a person involved in a contravention by the first respondent of section 47 of the Trade Practices Act 1974 (Cth). THE COURT ORDERS THAT: 2. The second respondent pay to the Commonwealth a pecuniary penalty pursuant to section 76 of the Trade Practices Act 1974 (Cth) in respect of his conduct referred to in paragraph 1 above, in the amount of $20,000 by four yearly instalments of $5,000 each, the first such instalment payable on or before 30 June 2007, and the second, third and fourth instalments payable on or before 30 June 2008, 30 June 2009 and 30 June 2010 respectively, provided that if the second respondent defaults in any payment and the default continues for one month after written notice of the default, the total outstanding balance shall become immediately due and payable. 3. The applicant and the second respondent bear their own costs of and incidental to the proceeding against the second respondent.