1 This is an application by the Australian Competition and Consumer Commission ('the Commission') made on 14 August 2006, which seeks declarations, injunctions, pecuniary penalties and other orders pursuant to ss 76 and 60 of the Trade Practices Act 1974 (Cth) ('the Act').
2 The Commission alleges contraventions of ss 45 and 48 of the Act by the first respondent, Jurlique International Pty Ltd ('Jurlique International') and the second respondent, Jurlique Distribution Pty Ltd ('Jurlique Distribution'), with the third respondent, J & J Franchising Pty Ltd ('J & J Franchising'), and the fourth respondent, Jurlique Spa Pty Ltd ('Jurlique Spa'), being knowingly concerned in those contraventions. In addition, the Commission alleges ancillary involvement in those contraventions within the terms of ss 75B and 76 of the Act by the fifth respondent, Dr Jurgen Klein ('Dr Klein'). The contraventions of s 48 of the Act alleged by the Commission against the respondents is in relation to resale price maintenance of skin care, cosmetic, and herbal medicine products, and the contraventions of s 45 are in relation to price fixing of skin and body treatment services.
3 On 3 October 2006, the first to fourth respondents filed a defence admitting to the conduct pleaded against them in the statement of claim, and on 28 September 2006, the fifth respondent filed a defence admitting to the conduct pleaded against him in the statement of claim.
4 On 27 September 2006, the parties filed a joint submission as to the form of final orders and penalties.
5 The joint submission reflects an agreement between the applicant and the respondents as to the relevant facts of the involvement of each of the respondents in the contraventions of Pt IV of the Act alleged by the Commission. Agreement has also been reached between all the parties as to the levels of pecuniary penalties pursuant to s 76 of the Act, to be recommended to the Court as appropriate in relation to the contraventions of Pt IV, as well as injunctions pursuant to s 80 of the Act, and two other orders which the Court is asked to make.
6 The issue before the Court is the amount of pecuniary penalty each respondent should be ordered to pay the Commonwealth in respect of the contraventions of the Act.
7 The joint submission recognises that, under s 76 of the Act, it is for the Court to determine whether the contraventions in relation to ss 45 and 48 of the Act have occurred and the quantum of any pecuniary penalties and other relief that should be ordered. The applicant and the respondents in their joint submissions recommend levels of pecuniary penalties which it asks the Court to impose, '… in order to assist the Court in coming to its own assessment of the level of penalties to be imposed and any other orders that the Court sees fit to make'.
8 Section 83 of the Act is an evidentiary provision which in essence provides that findings of fact made against a respondent in earlier proceedings is prima facie evidence of those facts in later proceedings by any affected person for damages or compensation orders. Section 83 further makes the provision that findings of fact in the reasons for judgment may be proved by production of a copy of the reasons for judgment sealed with the seal of the Court.
9 In light of the above, and having regard to the pleadings and the agreement between the applicant and the respondents as to the relevant facts concerning the involvement of each of the respondents in the contraventions of Pt IV of the Act, I make the findings which follow. Their formulation is to a large degree taken from the joint submissions of the Commission and the respondents:
'THE CONDUCT
Operations of Jurlique Companies
9. The Jurlique Companies are involved in the production and sale of Jurlique Products. Jurlique Products are skincare, cosmetic and herbal medicine products offered under the "Jurlique" brand name, manufactured by Jurlique International, including cleansers, moisturisers, face wash products, hand cream, essential oils, lipsticks, floral water, masks, shampoo, conditioner, bubble bath, shaving gel and showering gel.
10. Until November 2003 Dr Klein was a director of each of the Jurlique Companies, and operated the Jurlique Companies as a group. The companies' principal roles within that group have changed throughout the relevant period due to corporate restructures over time, and are detailed below. Dr Klein did not always make clear on behalf of which entity he was purporting to act. Dr Klein's multiple directorships of the companies, the common ownership of the companies and their operation as a group are appropriate matters to take into account when considering the appropriate penalties.
11. The respective relevant operations of each Jurlique Company are as follows:
11.1 Since 19 September 2002 when a corporate reorganisation occurred, Jurlique International has been the holding company for the other Jurlique Companies and is the manufacturer of Jurlique Products. Prior to 19 September 2002, each entity was owned by a holding company called Ngeringue Pty Ltd. Jurlique International also operated as distributor and supplier of Jurlique Products prior to 28 October 1998 and has done so again from 1 June 2003. In this capacity, Jurlique International supplies Jurlique Products to:
11.1.1. international retailers located outside Australia, for sale by the international retailer to members of the public;
11.1.2. Retailer Outlets in Australia, for sale by those retailers to members of the public;
11.1.3. J & J Franchising for sale at Company Outlets within Australia to members of the public; and
11.1.4. Jurlique Franchisees for sale by them within Australia to members of the public.
32.2. Jurlique Distribution was a distributor and supplier of Jurlique Products to wholesale customers and engaged in related sales and marketing activities. It fulfilled this role between 28 October 1998 and 31 May 2003. The company has not traded since June 2003. Jurlique Distribution supplied Jurlique Products to the same categories of outlets set out in paragraphs 11.1.1 to 11.1.4 above.
32.3. J & J Franchising operates Company Outlets in Australia that offer Jurlique Products and Jurlique Treatments. It is also the franchisor for the Franchise Outlets in Australia through which franchisees offer Jurlique Products and Jurlique Treatments. At 1 July 2003, it was the operator of 13 Company Outlets and the franchisor company for 12 Franchise Outlets. Currently it is the franchisor of 3 Franchise Outlets. The Company Outlets and Franchise Outlets retailed only Jurlique Products, which were supplied to them by Jurlique Distribution and Jurlique International.
32.4. A number of admitted contraventions concern offers to enter into franchise agreements by J & J Franchising and franchise agreements made by J & J Franchising. Each of these offers and franchise agreements required the franchisee to purchase all stock of Jurlique Products from J & J Franchising or Jurlique Distribution. While J & J Franchising has never offered to supply or supplied Jurlique Products to franchisees, the Jurlique Respondents have admitted the contraventions on the basis that J & J Franchising offered to enter into the franchise agreements on behalf of or by arrangement with Jurlique Distribution (the actual supplier of Jurlique Products at the relevant times).
32.5. Jurlique Spa offered training services and is party to various supply and distribution agreements with overseas entities for Jurlique Products. A number of admitted contraventions concern licence agreements made by Jurlique Spa each of which required the licensee to purchase all stock of Jurlique Products from Jurlique Spa or its importer in the relevant country. While Jurlique Spa has not supplied Jurlique Products to the licensees the Jurlique Respondents have admitted the contraventions on the basis that Jurlique Spa entered into the licence agreements on behalf of or by arrangement with Jurlique Distribution (the actual supplier of Jurlique Products at the relevant times). Jurlique Spa has not conducted any business since 19 September 2002.
Role of Dr Klein
12. Until November 2003 Dr Klein was managing director of Jurlique International and was the directing mind of each of the Jurlique Companies. Until 2003, the Jurlique Companies were owned by Dr Klein and members of his family through various trusts. Dr Klein began to sell down his interest in the Jurlique Companies during 2003.
13. Until November 2003 Dr Klein was involved in the day to day management of the Jurlique Companies including dealing with Jurlique Franchisees, negotiations with new stores and accounts and determining the marketing and sales strategy of the Jurlique Companies. He was familiar with the Jurlique Companies' agreements for Franchise Outlets and was directly involved in numerous discussions with Retailer Outlets and Jurlique Franchisees.
Resale Price Maintenance Conduct
14. The resale price maintenance conduct occurred over several years, in the course of the operations of the Jurlique Companies, until November 2003…
15. The following types of conduct were involved:
15.1. terms in the Jurlique Companies' Franchise Agreements and international supply agreements required Jurlique Franchisees and Retailer Outlets to price at a retail price determined by the Jurlique Companies. This meant that discounting from the Jurlique Companies' price lists was not permitted. The agreements were offered to potential Jurlique Franchisees and executed by existing Jurlique Franchisees;
15.2 ad hoc agreements with Jurlique Franchisees or Retailer Outlets about offering Jurlique Products for sale at the retail prices specified by Jurlique Companies in their price lists;
15.3 inducements and attempted inducements to Retailer Outlets and Franchise Outlets not to discount or advertise Jurlique Products at prices less than the retail prices determined by the Jurlique Companies in their price lists;
15.4 withholding supply from Retailer Outlets for the reason that the stores had sold Jurlique Products at prices less than the retail prices specified by the Jurlique Companies in their price lists; and
15.5 Using price lists that were likely to be understood by Retailer Outlets and Jurlique Franchisees as stating the price below which Jurlique Products were not to be sold or advertised for sale.'
10 The particular details of the above resale price maintenance conduct is as follows:
'Attempted inducement of Soichiro, Perth
16. In about August 1996, Dr Klein on behalf of Jurlique International, by correspondence with Soichiro Pty Ltd, a Jurlique Franchisee, attempted to induce Soichiro Pty Ltd not to sell Jurlique Products at prices less than the retail prices specified in the price lists published and distributed from time to time by Jurlique International. The conduct is outside the limitation period for penalty. The conduct is set out at paragraphs 10 to 12 of the statement of claim.
…
Withington Franchisees agreements, Melbourne
18. Dr Klein on behalf of J & J Franchising entered into franchise agreements with the entities specified below, containing a clause which provided that the Franchisee Outlet would not sell Jurlique Products at prices less than retail prices specified in the price lists published and distributed from time to time by Jurlique Distribution:
18.1. on or about 1 June 1999 with Ceon Holdings Pty Ltd (being outside the limitation period for penalty);
18.2. on or about 1 August 1999 with Jupita Investments Pty Ltd (being outside the limitation period for penalty);
18.3. on or about 28 October 1999 with South Addline Holdings Pty Ltd (being outside the limitation period for penalty);
18.4. on or about 8 December 2000 with Adnyl Investments Pty Ltd; and
18.5. on or about 16 July 2001 with BIM Investments Pty Ltd.
19. In entering the franchising agreements, J & J Franchising was acting by arrangement with or on behalf of Jurlique Distribution. The Jurlique Companies do not assert that the franchising agreements were true agency agreements under which the franchisees acted as agents of J & J Franchising…'
11 The conduct was as set out at pars 13 to 15 of the statement of claim:
'13. Between about June 1999 and July 2001, J & J Franchising entered into the following written franchise agreements, with Neal Withington, Lisa Withington and each of the Withington Franchisees:
(a) on or about 1 June 1999 with Ceon Holdings Pty Ltd, which conducted a Franchise Outlet at Fountain Gate, Victoria, for a term of six years from 1 June 1999;
(b) on or about 1 August 1999 with Jupita Investments Pty Ltd, which conducted a Franchise Outlet in Doncaster, Victoria, for a term of five years from 1 August 1999;
(c) on or about 28 October 1999 with South Addline Holdings Pty Ltd, which conducted a Franchise Outlet in Southland, Victoria, for a term of five years from 28 October 1999;
(d) on or about 8 December with Adnyl Investments Pty Ltd, which conducted a Franchise Outlet in Malvern, Victoria, for a term of five years from 8 December 2000; and
(e) on or about 16 July 2001 with BIM Investments Pty Ltd, which conducted a Franchise Outlet at 259 Little Collins Street, Melbourne, Victoria, for a term of five years from 16 July 2001.
14. Each of the agreements referred to in paragraph 13 above included the following terms as clauses 3.9(a) and 3.32:
"3.9(a) The Franchisee will purchase from the Franchisor or Julique Distribution Pty Ltd or any other supplier approved by the Franchisor in writing to supply stock to the Franchisee ("Licensed Supplier") all stock necessary for the conduct of the Franchised Operation that is available for supply by the Franchisor or Licensed Supplier from time to time."
"3.32 …Franchisees in Australia will act as an agent of Jurlique and its companies authorised by the Franchisor and under this agreement will be entitled to commission as agreed and are required to sell the Jurlique products for the retail prices set out in the Price List & Order Forms. Any pricing which discounts the upmarket image and positioning of the Jurlique brand is a serious breach of this Agreement."
15. In entering into each of the agreements referred to in paragraph 13 above, J & J Franchising was acting by arrangement with or on behalf of Jurlique Distribution.'
12 'Gillans end of supply agreement, Melbourne
20. On or about 27 and 28 February 2001, Dr Klein on behalf of Jurlique Distribution, by correspondence with James and Maureen Gillan who operated a Franchise Outlet, entered an agreement, which contained a term that James and Maureen Gillan would not sell Jurlique Products at prices less than recommended retail prices then specified by Jurlique Distribution…'
13 The conduct was as set out at pars 16 to 18 of the statement of claim:
'16. At all material times between on or about 29 October 1998 and on or about 21 May 2001:
(a) James Gillan and Maureen Gillan conducted a Franchise Outlet in Chapel Street, Melbourne, Victoria; and
(b) Jurlique Distribution supplied Jurlique Products to the Gillans for sale by them to the public.
17. On or about 27 and 28 February 2001, Jurlique Distribution, by Dr Klein, entered into an agreement with the Gillans, by their solicitors Riordan & Partners, about the termination of the supply of Jurlique Products by Jurlique Distribution to the Gillans.
Particulars
The terms of the agreement are set out in writing in the facsimile from Dr Klein to the solicitors for the Gillans dated 27 and 28 February 2001.
18. It was a term of the agreement referred to in paragraph 17 above that in the period between 27 February 2001 and 21 May 2001 the Gillans would not sell Jurlique Products at prices below the recommended retail prices, being prices specified by Jurlique Distribution.'
14 'Attempted inducement of 88 Australian Products, Sydney
22. In or about August 2001, Dr Klein on behalf of Jurlique International, by correspondence with 88 Australian Products which operated a Franchise Outlet, attempted to induce 88 Australian Products not to sell, or advertise for sale, Jurlique Products at prices less than the retail prices then specified by Jurlique International.'
15 The conduct was as set out at pars 19 to 22 of the statement of claim:
'19. In or about August 2001, 88 Australian Products offered and advertised for sale Jurlique Products at its Franchise Outlet at The Summit in Sydney, New South Wales at a 10% discount from the retail prices then specified by Jurlique International in the price lists published and distributed at or about that time by Jurlique International.
20. On or about 20 August 2001, Dr Klein on behalf of Jurlique International:
(a) sent correspondence to 88 Australian Products;
(b) by the above correspondence, threatened to terminate the agreement pursuant to which Jurlique International supplied Jurlique Products to 88 Australian Products for sale at its Franchise Outlet at The Summit, unless 88 Australian Products ceased selling or advertising for sale, Jurlique Products at a 10% discount from the retail prices then specified by Jurlique International.
21. On or about 24 August 2001, Dr Klein on behalf of Jurlique International:
(a) sent correspondence to 88 Australian Products;
(b) by the above correspondence, threatened to terminate the agreement pursuant to which Jurlique International supplied Jurlique Products to 88 Australian Products for sale at its Franchise Outlet at The Summit, unless 88 Australian Products ceased selling or advertising for sale, Jurlique Products at 10% discount from the retail prices then specified by Jurlique International.
22. By Dr Klein's conduct referred to in paragraphs 20 and 21 above, Jurlique International attempted to induce 88 Australian Products not to sell, or advertise for sale, Jurlique Products supplied to 88 Australian Products by Jurlique International at prices below the retail prices then specified by Jurlique International.'
16 'Withholding supply from the Jin Hsing Companies, Gold Coast, Melbourne and Sydney
19. In or about November 2001, Jurlique Distribution, by correspondence, terminated supply agreements with House of Nature Pty Ltd, South Ocean Duty Free Pty Ltd, Jin Hsing Duty Free Pty Ltd and Monarch Duty Free Pty Ltd for the reason that each company had sold Jurlique Products supplied to them by Jurlique Distribution at a price less than the retail prices specified by Jurlique Distribution. The Jurlique Companies do not assert that the supply agreements were true agency agreements.'
17 The conduct was as set out at pars 23 to 28 of the statement of claim:
'23. On or about 1 January 1999 Jurlique Distribution entered into agreements with each of the Jin Hsing Companies for the supply by Jurlique Distribution to the Jin Hsing Companies of Jurlique Products for resale to the public through Retail Outlets conducted by the Jin Hsing Companies on the Gold Coast, Queensland, Melbourne, Victoria and in Sydney, New South Wales.
20. The agreements referred to in paragraph 23 above included the following terms as clauses 2.2, 3 and 6:
"2.2 . . . Jurlique has positioned its range as a prestige up-market brand and this is not to be devalued, discredited or down graded by the actions of the Agent. Jurlique Distribution Pty Ltd is entitled to immediately terminate this agreement and withdraw supply if, in its view, the standard of any of the Agreed Premises or the Agent's presentation of Jurlique falls below Jurlique's image criteria."
"3. The initial term of this agreement began on the 1st January 1999 and will end on the 31st December 1999, unless earlier terminated pursuant to clause 6. This agreement, unless earlier terminated pursuant to clause 6, will then continue for successive periods of 6 months from the 1st January in each year to the 30th June and from the 1st July to the 31st December in that year."
"6. This Agreement may be terminated:
(a) without cause by either party giving to the other party at least one month's written notice;
(b) immediately by either party giving written notice to the other party where the other party has breached a term of this agreement or any other agreement between the parties and the breach, if rectifiable, is not rectified within 30 days of the date of notice requiring rectification;
(c) . . .
(d) Immediately by Jurlique Distribution Pty Ltd giving written notice to the Agent where termination under clauses 2.2, 2.5 or 2.7 of the agreement applies."
21. Between about 1 January 1999 and November 2001:
(a) Jurlique Distribution supplied Jurlique Products to the Jin Hsing Companies pursuant to the above agreements;
(b) Jurlique Distribution provided price lists to the Jin Hsing Companies, which included a retail price for each Jurlique Product supplied to the Jin Hsing Companies by Jurlique Distribution; and
(c) The Jin Hsing Companies had sold Jurlique Products supplied to them by Jurlique Distribution at prices below the retail prices specified by Jurlique Distribution in the price lists referred to in paragraph (b) above.
22. In or about November 2001 Jurlique Distribution terminated the above agreements with the Jin Hsing Companies referred to in paragraph 23 above.
23. Between about November 2001 and 8 February 2002 Jurlique Distribution withheld supply of Jurlique Products from each of the Jin Hsing Companies.
24. Jurlique Distribution engaged in the conduct referred to in paragraphs 26 and 27 above, for the reason that the Jin Hsing Companies had sold Jurlique Products supplied to them by Jurlique Distribution at prices below the retail prices specified by Jurlique Distribution in the price lists referred to in paragraph 25(b) above.'
18 'Agreement to resume supply to the Jin Hsing Companies
24. On or about February 2002, Jurlique Distribution by correspondence entered into an agreement with House of Nature Pty Ltd, South Ocean Duty Free Pty Ltd, Jin Hsing Duty Free Pty Ltd and Monarch Duty Free Pty Ltd, which contained a term that House of Nature Pty Ltd, South Ocean Duty Free Pty Ltd, Jin Hsing Duty Free Pty Ltd and Monarch Duty Free Pty Ltd would not sell Jurlique Products at prices less than retail prices specified by Jurlique Distribution…'
19 The conduct was as set out at pars 29 to 31 of the statement of claim:
'29. On or about 24 January 2002 the Jin Hsing Companies requested that Jurlique Distribution continue to supply Jurlique Products to the Jin Hsing Companies and offered to apply a selling policy to the effect that "strictly no discounts will be offered but instead bonus packs, samples or gift-with-purchase will be provided to customers."
Particulars
The request and offer were in writing in a letter from Jin Hsing Trading Pty Ltd to Jurlique Distribution dated 24 January 2002.
30. On or about 8 February 2002, Jurlique Distribution agreed to resume supplying Jurlique Products to the Jin Hsing Companies for resale to the public through Retail Outlets conducted by the Jin Hsing Companies on the Gold Coast, Queensland and in Sydney, New South Wales.
Particulars
The terms of the agreement were set out in the course of correspondence between Jurlique Distribution and Jin Hsing Trading Pty Ltd between 2 January 2002 and 8 February 2002.
31. It was term of the agreement referred to in paragraph 30 above that the Jin Hsing Companies strictly adhere to the terms of the offer referred to in paragraph 29 above.'
20 'Attempted inducement of the Withington Franchisees
26. In or about January 2002, J & J Franchising, by correspondence with Neal and Lisa Withington, attempted to induce Neal and Lisa Withington as representatives for each of the Withington Franchisees, namely Ceon Holdings Pty Ltd, Jupita Investments Pty Ltd, South Addline Holdings Pty Ltd and Adnyl Investments Pty Ltd, not to sell Jurlique Products at prices less than the retail prices specified from time to time by Jurlique Distribution. In engaging in the conduct, J & J Franchising was acting by arrangement with or on behalf of Jurlique Distribution…'
21 The conduct was as set out at pars 32 and 33 of the statement of claim:
'32. In or about January 2002 J & J Franchising, by its general manager Peter Sandyford:
(a) sent emails to Neal Withington, as a representative for each of the Withington Franchisees;
(b) by the above emails, asked whether the Withington Franchisees were selling or advertising for sale Jurlique Products at discounts of 20% below the retail prices specified from time to time by Jurlique Distribution in the price lists published and distributed by Jurlique Distribution and, if that was so, asked Mr Withington to explain the philosophy behind it;
(c) by the above emails, reminded Mr Withington that the Jurlique Companies strongly discouraged discounting of Jurlique Products below the retail prices specified from time to time by Jurlique Distribution; and
(d) thereby attempting to induce the Withington Franchisees not to sell Jurlique Products below the retail prices specified from time to time by Jurlique Distribution.
33. J & J Franchising engaged in the conduct referred to in paragraph 32 above by arrangement with or on behalf of Jurlique Distribution.'
22 'Offers to enter into franchise agreements
27. J & J Franchising offered to enter franchise agreements containing a clause which provided that the Jurlique Franchisee would not sell Jurlique Products at prices less than retail prices to be specified from time to time by Jurlique Distribution:
27.1 in or about 24 January 2002 with Evelyn Moore;
27.2 in or about 24 May 2002 with Richard Firth;
27.3 in or about 4 June 2002 with Mandy Tapfield;
27.4 in or about September 2002 with 88 Australian Products Pty Ltd and Roger Lim;
27.5 in or about September 2002 with Neal and Lisa Withington and Ceon Holdings Pty Ltd;
27.6 in or about October 2002 with Neal Withington and Jupita Investments Pty Ltd;
27.7 in or about October 2002 with Neal and Lisa Withington and South Addline Holdings Pty Ltd;
27.8 in or about October 2002 with Neal and Lisa Withington and BIM Investments Pty Ltd;
27.9 in or about October 2002 with Neal and Lisa Withington and Adnyl Investments Pty Ltd;
27.10 in or about October 2002 with Neal and Lisa Withington and Day Spa 267 Pty Ltd; and
27.11 in or about December 2002 with 88 Australian Products Pty Ltd.
28. In making the offers, J & J Franchising was acting by arrangement with or on behalf of Jurlique Distribution. The offered franchise agreements containing the clause were not executed. The Jurlique Companies do not assert that the offered franchise agreements were true agency agreements…'
23 The conduct was as set out at pars 34 to 39 of the statement of claim:
'Offers to enter into franchise agreements
34. On or about 24 January 2002 J & J Franchising (as Franchisor) offered in writing to enter into a franchise agreement with Evelyn Moore (as Franchisee).
35. The offer referred to in paragraph 34 above included the following terms as clauses 3.9(a) and 3.32:
"3.9(a) The Franchisee will purchase from the Franchisor or Jurlique Distribution Pty Ltd or any other supplier approved by the Franchisor in writing to supply stock to the Franchisee ("Licensed Supplier") all stock necessary for the conduct of the Franchised Operation that is available for supply by the Franchisor or Licensed Supplier from time to time."
"3.32 …Franchisees in Australia will act as an agent of Jurlique and its companies authorised by the Franchisor and under this agreement will be entitled to commission as agreed and are required to sell the Jurlique products for the retail prices set out in the Price List & Order Forms. Any pricing which discounts the upmarket image and positioning of the Jurlique brand is a serious breach of this Agreement."
36. In engaging in the conduct referred to in paragraph 34 above, J & J Franchising was acting by arrangement with or on behalf of Jurlique Distribution.
37. Between May 2002 and December 2002 J & J Franchising (as Franchisor) offered in writing to enter into franchise agreements with the following persons (each as a Franchisee):
(a) on or about 24 May 2002 with Richard Firth, in relation to a possible Franchise Outlet in Merribrook, Western Australia.
(b) on or about 4 June 2002 with Mandy Tapfield, in relation to a possible Franchise Outlet;
(c) in or about September 2002 with 88 Australian Products Pty Ltd, which conducted a Franchise Outlet on the Gold Coast, Queensland, and Roger Lim;
(d) in or about September 2002 and October 2002 with Neal and Lisa Withington and each of:
(i) Ceon Holdings Pty Ltd ACN 081 590 696;
(ii) Jupita Investments Pty Ltd ACN 056 842 865;
(iii) South Addline Holdings Pty Ltd ACN 087 439 227;
(iv) Adnyl Investments Pty Ltd ACN 095 196 544; and
(v) BIM Investments Pty Ltd ACN 097 071 915;
(e) in or about October 2002 with Neal and Lisa Withington and Day Spa 267 Pty Ltd, which conducted a Franchise Outlet at 267 Collins Street Melbourne, Victoria; and
(f) in or about December 2002 with 88 Australian Products Pty Ltd, which conducted a Franchise Outlet at The Summit, 569-589 George Street, Sydney, New South Wales, and Roger Lim.
38. Each of the offers referred to in paragraph 37 above included the following terms in clauses 11.1.1, 11.6.2, and 11.6.3:
"11.1.1 The Franchisee must purchase all Stock from the Franchisor or Jurlique Distribution Pty Limited ACN 084 926 536 upon its usual terms and conditions of supply. The purchase price of Stock may vary from time to time."
"11.6.2 The retail sale price, and the Franchisee's margins for all Stock will be set by agreement between the Franchisor and the Franchisee. If the Franchisor and the Franchisee cannot agree those prices and margins within a reasonable time then the Franchisor may, in its absolute discretion, terminate this Licence on two months notice."
"11.6.3 The Franchisee must sell all products offered for sale at the Premises at the prices fixed in accordance with Clause 11.6.2."
39. In engaging in the conduct referred to in paragraph 37 above, J & J Franchising was acting by arrangement with or on behalf of Jurlique Distribution.'
24 '29. The franchise agreements sent to Evelyn Moore … Richard Firth … and Mandy Tapfield … were never finalised.
30. J & J Franchising did not sign the franchise agreements containing the term with 88 Australian Products Pty Ltd (paragraph 27.4 and 27.11 above), Ceon Holdings Pty Ltd (paragraph 27.5 above), Jupita Investments Pty Ltd (paragraph 27.6 above), South Addline Holdings Pty Ltd (paragraph 27.7 above), BIM Investments Pty Ltd (paragraph 27.8 above), Adnyl Investments Pty Ltd (paragraph 27.9 above), Day Spa 267 Pty Ltd (paragraph 27.10 above). The pleaded conduct is that of offering to enter an agreement, for the purposes of section 96(3)(c) of the Act.
31. In June 2004, as part of its response to the ACCC's investigation, J & J Franchising executed a deed of waiver in relation to each of the offered agreements in paragraphs 27.5 to 27.11 above.
Agreements outside Australia
32. Dr Klein on behalf of Jurlique Spa entered into international supply agreements containing a clause which contained a term that the Retailer Outlet would not sell Jurlique Products at prices less than retail prices to be specified from time to time by Jurlique Distribution:
32.1. in or about 1 February 2002, with Inchant Korea Limited and Junhee Bang (Korea);
32.2. in or about 26 June 2002, with Zhongshan Julei Beauty Company Limited and Ruan Hai Fan (China);
32.3. in or about 10 August 2002, with Beau' Bell Spa and Skin Care Pvt Ltd and Madhuri Kadiyala (India); and
32.4. in or about December 2002, with Fullo Pty Ltd and Winnie Lo (Taiwan).
33. In making the agreements, Jurlique Spa was acting by arrangement with or on behalf of Jurlique Distribution. Each of the agreements was an agreement for the supply of goods to another person…'
25 The conduct was as set out at pars 40 to 51 of the statement of claim:
'Korea
40. On or about 1 February 2002, Jurlique Spa entered into a written agreement with Inchant Korea Limited (as Licensee) and Junhee Bang, licensing Inchant Korea Limited to retail Jurlique Products in the Republic of Korea.
41. The agreement referred to in paragraph 40 above included the following supply terms in clauses 10.2.1, 10.4.2 and 10.4.3;
"10.2.1 The Licensee must purchase all Stock from Jurlique [Spa] upon its usual terms and conditions of supply."
"10.4.2 The wholesale sale price, the retail sale price, and the Licensee's margins for all Stock . . . shall be set by agreement between Jurlique [Spa] and the Licensee. If Jurlique [Spa] and the Licensee cannot agree those prices and margins within a reasonable time then the Jurlique [Spa] may, in its absolute discretion, terminate this Licence on two months notice."
"10.4.3 The Licensee must sell all products offered for sale at the Premises at the prices fixed in accordance with Clause 10.4.2."
42. In entering into the agreement referred to in paragraph 40 above, Jurlique Spa was acting by arrangement with or on behalf of Jurlique Distribution.
China
43. On or about 26 June 2002, Jurlique Spa (as Licensor) entered into a written agreement with Zhongshan Julei Beuty Company Limited (as Licensee) and Ruan Hai Fan, licensing Zhongshan Julei Beauty Company Limited to retail Jurlique Products in Guangdong Province and Zhuai, China for an initial term of three years commencing on 1 August 2002.
44. The agreement referred to in paragraph 43 above included the following supply terms in clauses 10.2.1, 10.4.2 and 10.4.3:
"10.2.1 The Licensee must purchase all Stock from the Licensor's importer in China upon its usual terms and conditions of supply."
"10.4.2 The wholesale sale price, the retail sale price, and the Licensee's margins for all Stock . . . shall be set by agreement between the Licensor and the Licensee. If the Licensor and the Licensee cannot agree those prices and margins within a reasonable time then the Jurlique [Spa] may, in its absolute discretion, terminate this Licence on two months notice."
"10.4.3 The Licensee must sell all products offered for sale at the Premises at the prices fixed in accordance with Clause 10.4.2."
45. In entering into the agreement referred to in paragraph 43 above, Jurlique Spa was acting by arrangement with or on behalf of Jurlique Distribution.
India
46. On or about 10 August 2002, Jurlique Spa entered into a written agreement with Beau' Belle Spa and Skin Care Pvt Ltd and Madhuri Kadiyala, licensing Beau' Belle Spa and Skin Care Pvt Ltd to retail Jurlique products in Hyderabad, India for an initial term of five years commencing on 1 August 2002.
47. The agreement referred to in paragraph 46 above included the following supply terms in clauses 10.2.1, 10.4.2 and 10.4.3:
"10.2.1 The Licensee must purchase all Stock from Jurlique [Spa] upon its usual terms and conditions of supply."
"10.4.2 The wholesale sale price, the retail sale price, and the Licensee's margins for all Stock . . . shall be set by agreement between Jurlique [Spa] and the Licensee. If Jurlique [Spa] and the Licensee cannot agree those prices and margins within a reasonable time then the Jurlique [Spa] may, in its absolute discretion, terminate this Licence on two months notice."
"10.4.3 The Licensee must sell all products offered for sale at the Premises at the prices fixed in accordance with Clause 10.4.2."
48. In entering into the agreement referred to in paragraph 46 above, Jurlique Spa was acting by arrangement with or on behalf of Jurlique Distribution.
Taiwan
49. In or about December 2002, Jurlique Spa (as Licensor) entered into a written agreement with Fullo Pty Ltd (as Licensee) and Winnie Lo, licensing Fullo Pty Ltd to retail Jurlique products in Taipei, Taiwan for a term of five years from 1 January 2003.
50. The agreement referred to in paragraph 49 above included the following supply terms in clauses 10.2.1, 10.4.2 and 10.4.3:
"10.2.1 The Licensee must purchase all Stock from the Licensor's importer in Taiwan upon its usual terms and conditions of supply."
"10.4.2 The wholesale sale price, the retail sale price, and the Licensee's margins for all Stock . . . shall be set by agreement between the Licensor and the Licensee. If the Licensor and the Licensee cannot agree those prices and margins within a reasonable time then the Licensor may, in its absolute discretion, terminate this Licence on two months notice."
"10.4.3 The Licensee must sell all products offered for sale at the Premises at the prices fixed in accordance with Clause 10.4.2."
51. In entering into each of the agreements referred to in paragraph 49 above, Jurlique Spa was acting by arrangement with or on behalf of Jurlique Distribution.'
26 '34. In August 2005, as part of its response to the ACCC's investigation, Jurlique Spa executed a deed of waiver unconditionally releasing each other party from any obligations to comply with the term in each of the above agreements.
35. In or about June 2003, Dr Klein on behalf of Jurlique International entered into an international supply agreement with Jurlique Hong Kong Limited containing a clause which contained a term that Jurlique Hong Kong Limited would not sell Jurlique Products at prices less than retail prices to be specified from time to time by Jurlique International. The agreement was for the supply of goods to another person…'
27 The conduct was as set out at pars 52 to 54 of the statement of claim:
'Hong Kong
52. At all material times since June 2003:
(a) Jurlique Hong Kong Limited was a private company limited by shares incorporated in Hong Kong, China; and
(b) One half of the issued share capital of Jurlique Hong Kong Limited was held by Jurlique International.
53. In or about June 2003, Jurlique International (as Licensor) entered into a written agreement with Jurlique Hong Kong Limited (as Licensee) in relation to the operation of retail outlet for Jurlique Products in Hong Kong, China, for a term of five years from June 2003.
54. The agreement referred to in paragraph 53 above included the following supply terms in clauses 10.2.1, 10.4.2 and 10.4.3:
"10.2.1 The Licensee must purchase all Stock from the Licensor, or its nominee, upon its usual terms and conditions of supply."
"10.4.2 The Export Price, wholesale price and recommended retail sale price for all Stock … shall be set by agreement between the Licensor and the Licensee and reviewed annually from the date of this agreement. If the Licensor and the Licensee cannot agree those prices and margins within a reasonable time then the Licensor may, in its absolute discretion, terminate this Licence on two months notice."
"10.4.3 The Licensee must sell all products offered for sale at the Premises at the prices fixed in accordance with Clause 10.4.2."
'36. In August 2004, as part of its response to the ACCC's investigation, Jurlique International executed a deed of waiver unconditionally releasing Jurlique Hong Kong Limited from any obligation to comply with the term.'
28 'Franchise agreement with Beaut'e Werx, Paramatta
37. On or about 15 July 2002, Dr Klein on behalf of J & J Franchising entered into a franchise agreement with Beaut'e Werx Pty Ltd and Dorothy Chua containing a clause which contained a term that Beaut'e Werx Pty Ltd would not sell Jurlique Products at prices less than retail prices to be specified from time to time by the Jurlique Distribution. In making the offer, J & J Franchising was acting by arrangement with or on behalf of Jurlique Distribution. The Jurlique Companies do not assert that the agreement was a true agency agreement.'
29 The conduct was as set out at pars 55 to 57 of the statement of claim:
'55. On or about 15 July 2002, J & J Franchising (as Franchisor) entered into a written franchise agreement with Beaut'e Werx Pty Ltd (as Franchisee) and Dorothy Chua for the operation of a Franchise Outlet at Parramatta, New South Wales for a term of five years commencing 1 July 2002.
56. The franchise agreement referred to in paragraph 55 above included the following terms in clauses 11.1.1, 11.6.2 and 11.6.3:
"11.1.1 The Franchisee must purchase all Stock from the Franchisor or Jurlique Distribution Pty Limited ACN 084 926 536 upon its usual terms and conditions of supply. The purchase price of the Stock may vary from time to time."
"11.6.2 The retail sale price, and the Franchisee's margins for all Stock will be set, from time to time, by written agreement between the Franchisor and the Franchisee. If the Franchisor and the Franchisee cannot agree those prices and margins within a reasonable time then the Franchisor may, in its absolute discretion, terminate this Agreement on two months notice."
"11.6.3 The Franchisee must sell all products offered for sale at the Premises at the prices fixed in accordance with Clause 11.6.2."
57. In entering into the agreement referred to in paragraph 55 above, J & J Franchising was acting by arrangement with or on behalf of Jurlique Distribution.'
'38. On 4 September 2002, as part of its response to the ACCC's investigation, J & J Franchising executed a deed of waiver unconditionally releasing the other parties from any obligations under the term.'
30 'Jurlique Franchisee sales to visitors to Australia
39. In or about July 2002, Dr Klein on behalf of Jurlique Distribution, by correspondence to all Jurlique Franchisees, induced or attempted to induce Franchise Outlets not to sell Jurlique Products to customers visiting Australia at prices less than the retail prices specified from time to time by Jurlique Distribution in the price lists published and distributed by Jurlique Distribution.'
31 The conduct was as set out at pars 58 and 59 of the statement of claim:
'58. In or about July 2002, Dr Klein:
(a) sent an email to the Jurlique Franchisees;
(b) in the above email, stated that the Jurlique Franchisees could offer to foreign customers shopping at their stores in Australia a maximum discount of 10% off the retail prices for Jurlique Products specified from time to time by Jurlique Distribution in the price lists published and distributed by Jurlique Distribution; and
(c) by the above email, induced or attempted to induce the Jurlique Franchisees not to sell Jurlique Products supplied to them by Jurlique Distribution to foreign customers at prices less than 10% below the retail prices specified from time to time by Jurlique Distribution.
59. Dr Klein engaged in the conduct referred to in paragraph 58 above on behalf of Jurlique Distribution.'
32 '88 Australian Products offer
40. On or about 27 December 2002, Dr Klein on behalf of Jurlique International, by correspondence to 88 Australian Products, offered to reach an agreement with 88 Australian Products which contained a term that the 88 Australian Products would not sell Jurlique Products at prices less than retail prices specified and to be specified by Jurlique Distribution. In making the offer, Jurlique International was acting by arrangement with or on behalf of Jurlique Distribution…'
33 The conduct was as set out at pars 60 and 61 of the statement of claim:
'60. On or about 27 December 2002, Jurlique International, by Dr Klein, offered in writing to give 88 Australian Products a 20% discount froom the wholesale price for Jurlique Products supplied to 88 Australian Products by Jurlique Distribution for a 12 month period from 1 January 2003, provided none of the Jurlique Products was discounted or sold to persons other than genuine retail customers at the retail prices that would be specified from time to time by Jurlique Distribution.
Particulars
The offer was set out in an email from Sharon Underwood to Roger Lim dated 27 December 2002.
61. In making the offer referred to in paragraph 60 above, Jurlique International was acting by arrangement with or on behalf of Jurlique Distribution.'
34 'Franchise agreement with Ceon Holdings, Melbourne
42. In or about February 2003, J & J Franchising entered into a franchise agreement containing a clause which contained a term that Ceon Holdings Pty Ltd and Neal and Lisa Withington would not sell Jurlique Products at prices less than retail prices to be specified from time to time by Jurlique Distribution. In making the agreement, J & J Franchising was acting by arrangement with or on behalf of Jurlique Distribution…'
35 The conduct was as set out at pars 62 to 64 of the statement of claim:
'62. On or about 11 February 2003, J & J Franchising entered into a written franchise agreement with Ceon Holdings Pty Ltd, Neal Withington and Lisa Withington for the operation of a Franchise Outlet at Fountain Gate, Victoria.
63. The franchise agreement referred to in paragraph 62 above included the following terms in clauses 11.1.1, 11.6.2 and 11.6.3:
"11.1.1 The Franchisee must purchase all Stock from the Franchisor or Jurlique Distribution Pty Limited ACN 084 926 536 upon its usual terms and conditions of supply. The purchase price of the Stock may vary from time to time."
"11.6.2 The retail sale price, and the Franchisee's margins for all Stock will be set, from time to time, by written agreement between the Franchisor and the Franchisee. If the Franchisor and the Franchisee cannot agree those prices and margins within a reasonable time then the Franchisor may, in its absolute discretion, terminate this Agreement on two months notice."
"11.6.3 The Franchisee must sell all products offered for sale at the Premises at the prices fixed in accordance with Clause 11.6.2."
64. In entering into the agreement referred to in paragraph 62 above, J & J Franchising was acting by arrangement with or on behalf of Jurlique Distribution.'
'43. On 25 June 2004, as part of its response t the ACCC's investigation, J & J Franchising executed a deed of waiver unconditionally releasing Ceon Holdings Pty Ltd from any obligation to comply with the term.'
36 'Statement of price
44. Price lists for Jurlique Products were issued by the Jurlique Companies between 1991 and 2003. In the context of the Jurlique Companies' staff telling Retailer Outlets and Franchise Outlets about the Jurlique Companies' policy about discounting from those price lists, those price lists were likely to be understood by Retailer Outlets and Jurlique Franchisees as stating the price below which Jurlique Products were not to be sold or advertised for sale…'
37 The conduct was as set out at pars 65 to 71 of the statement of claim:
'65. At all material times from 1991 until 19 September 2002 at the direction of Ngeringue and between 19 September 2002 and November 2003:
(a) the Jurlique Companies promoted Jurlique Products as prestige products;
(b) Retailer Outlets and Jurlique Franchisees were informed by the Jurlique Companies that if a Retailer Outlet or Jurlique Franchisee engaged in practices that the Jurlique Companies and Dr Klein considered damaging to the prestige image of Jurlique Products, the Retailer Outlet or Jurlique Franchisee faced termination of its supply agreement with the Jurlique Companies;
(c) Retailer Outlets and Jurlique Franchisees were informed by the Jurlique Companies that the Jurlique Companies and Dr Klein considered that selling or advertising Jurlique Products for sale at prices below the retail prices specified by the Jurlique Companies, other than limited discounting for those customers who held loyalty cards, damaged the prestige image of Jurlique Products; and
(d) The Jurlique Companies and Dr Klein instructed sales staff employed by the Jurlique Companies who dealt with Retailer Outlets and Jurlique Franchisees that discounting below the retail prices damaged the Jurlique brand, and they were to strongly discourage it in their dealings with Retailer Outlets and Jurlique Franchisees, which they did.
Supply of products and price lists
66. At all material times:
(a) between 1991 and 28 October 1998 at the direction of Ngeringue; and
(b) between 1 June 2003 and November 2003:
Jurlique International:
(c) supplied Jurlique Products to Retailer Outlets and Jurlique Franchisees on the express condition that those Retailer Outlets and Jurlique Franchisees were not permitted to engage in practices that could damage the prestige image of Jurlique Products; and
(d) maintained and provided to Retailer Outlets and Jurlique Franchisees, from time to time, price lists for Jurlique Products supplied by Jurlique International, which did not include any statement that the prices were recommended retail prices only and that there was no obligation to comply with the prices.
67. The price lists referred to in paragraph 66(d) above were intended by Jurlique International and by Dr Klein to be understood by Retailer Outlets and Jurlique Franchisees to be stating the price below which Jurlique Products were not to be sold or advertised for sale by the Retailer Outlets and Jurlique Franchisees.
68. By reason of the matters set out in paragraphs 65, 66 and 67 above, the price lists referred to in paragraph 66(d) above were likely to be understood by Retailer Outlets and Jurlique Franchisees as stating the price below which Jurlique Products were not to be sold or advertised for sale by the Retailer Outlets and Jurlique Franchisees.
69. At all material times:
(a) between 29 October 1998 and 19 September 2002 at the direction of Ngeringue; and
(b) between 20 September 2002 and 31 May 2003;
Jurlique Distribution:
(c) supplied Jurlique Products to Retailer Outlets and Jurlique Franchisees on the express condition that those Retailer Outlets and Jurlique Franchisees were not permitted to engage in practices that could damage the prestige image of Jurlique Products; and
(d) maintained and provided to Retailer Outlets and Jurlique Franchisees, from time to time, price lists for Jurlique Products supplied by Jurlique Distribution, which did not include any statement that the prices were recommended retail prices only and that there was no obligation to comply with the prices.
70. The price lists referred to in paragraph 69(d) above were intended by Jurlique Distribution and by Dr Klein to be understood by Retailer Outlets and Jurlique Franchisees to be stating the price below which Jurlique Products were not to be sold or advertised for sale by the Retailer Outlets and Jurlique Franchisees.
71. By reason of the matters set out in paragraphs 65, 69, 70 above, the price lists referred to in paragraph 69(d) above were likely to be understood by Retailer Outlets and Jurlique Franchisees as stating the price below which Jurlique Products were not to be sold or advertised for sale by the Retailer Outlets and Jurlique Franchisees.'
38 '45. After the ACCC investigation into the relevant conduct commenced, in June 2004 Jurlique International wrote to Jurlique Franchisees and stated that there was no obligation to comply with the prices in Jurlique's retail price lists. In July 2004, Jurlique International instructed its staff to refer to price in all documents as "recommended retail price" and to include a disclaimer on price lists that price was only recommended, with no obligation to comply with that recommendation.
46. From about July 2004, Jurlique International began including a statement on its price lists that the prices were recommended only and there was no obligation to comply with the recommendation.
…'
39 'Price Fixing, Melbourne
48. From about January 2001, J & J Franchising supplied Jurlique Treatments through its day spa at Melbourne Central in the Melbourne central business district. Jurlique Treatments are skin, body and spa treatment services using Jurlique Products, including facials, massages, waxing, tinting, body wraps and exfoliation, offered under the "Jurlique" brand name. In offering Jurlique Treatments through its Melbourne Central day spa, J & J Franchising was in competition with (inter alia):
48.1 Adnyl Investments Pty Ltd, which supplied Jurlique Treatments through its outlet at Malvern Central Shopping Centre in Melbourne;
48.2 Ceon Holdings Pty Ltd, which supplied Jurlique Treatments through its outlet at Fountain Gate in Melbourne;
48.3 Jupita Investments Pty Ltd, which supplied Jurlique Treatments through its outlet at Doncaster in Melbourne; and
48.4 South Addline Holdings Pty Ltd, which supplied Jurlique Treatments through its outlet at Southland in Melbourne.
49. In about March 2001, J & J Franchising, as operator of the day spa at Melbourne Central, reached an agreement about the retail prices for the supply of Jurlique Treatments with Neal and Lisa Withington on behalf of each of Adnyl Investments Pty Ltd, Ceon Holdings Pty Ltd, Jupita Investments Pty Ltd, and South Addline Holdings Pty Ltd.
50. From about March 2001, the arrangement was that Adnyl Investments Pty Ltd would supply the Jurlique Treatments at the same prices as the Jurlique Companies' day spa at Melbourne Central and that from about March 2001, each of Ceon Holdings Pty Ltd, South Addline Holdings Pty Ltd and Jupita Investments Pty Ltd would supply the Jurlique Treatments at the prices used prior to March 2001 by the Jurlique Companies' day spa at Melbourne Central. From about March 2002, the arrangement provided that each of Ceon Holdings Pty Ltd, South Addline Holdings Pty Ltd and Jupita Investments Pty Ltd would supply the Jurlique Treatments at the same prices as the Jurlique Companies' day spa at Melbourne Central…'
40 The conduct was as set out at pars 72 and 73 of the statement of claim:
'72. At all material times from January 2001:
(a) the following Withington Franchisees supplied Jurlique Treatments to members of the public through stores or day spas in the Melbourne metropolitan area:
(i) Adnyl Investments Pty Ltd supplied Jurlique Treatments through its outlet at Malvern Shopping Centre in Melbourne;
(ii) Ceon Holdings Pty Ltd supplied Jurlique Treatments through its outlet at Fountain Gate Shopping Centre in Melbourne;
(iii) Jupita Investments Pty Ltd supplied Jurlique Treatments through its outlet at Doncaster in Melbourne; and
(iv) South Addline Holdings Pty Ltd supplied Jurlique Treatments through its outlet at Southland Centre in Melbourne;
(b) J & J Franchising supplied Jurlique Treatments to members of the public through its day spa at Melbourne Central in Melbourne; and
(c) J & J Franchising was in competition with each of the Withington Franchisees for the supply of Jurlique Treatments in and around Melbourne.
73. In or about March 2001, Mark Wuttke on behalf of J & J Franchising entered into an arrangement with Neal and Lisa Withington, on behalf of those Withington Franchisees which contained provisions to the following effect:
(a) that from about April 2001, Adnyl Investments Pty Ltd would supply the Jurlique Treatments at the Malvern Central Shopping Centre at the same prices as the J & J Franchising day spa at Melbourne Central;
(b) that from about April 2001, each of Ceon Holdings Pty Ltd, South Addline Holdings Pty Ltd and Jupita Investments Pty Ltd would supply the Jurlique Treatments at the Fountain Gate Shopping Centre, Doncaster and the Southland Shopping Centre at the prices used prior to April 2001 by the J & J Franchising day spa at Melbourne Central; and
(c) that from about April 2002, each of Ceon Holdings Pty Ltd, South Addline Holdings Pty Ltd and Jupita Investments Pty Ltd would supply the Jurlique Treatments at the Fountain Gate Shopping Centre, Doncaster and the Southland Shopping Centre at the same prices as the J & J Franchising day spa at Melbourne Central.'
41 '51. J & J Franchising gave effect to the price fixing agreement by:
51.1. between March 2001 and April 2002, supplying the Jurlique Treatments at its day spa at Melbourne Central at the agreed prices; and
51.2. in or about April 2002, notifying Ceon Holdings Pty Ltd, South Addline Holdings Pty Ltd and Jupita Investments Pty Ltd, by Neal and Lisa Withington, that the prices of Jurlique Treatments in promotional material prepared by the Jurlique Companies for those Franchise Outlets would be increasing to the same prices as the day spa at Melbourne Central.'
42 The conduct was as set out at par 74 of the statement of claim:
'74. J & J Franchising gave effect to the price fixing agreement by:
(a) between March 2001 and April 2002, supplying those Withington Franchisees with treatment menus and promotional material specifying prices in accordance with the provision referred to in paragraphs 73(a) and 73(b) above; and
(b) in or about April 2002, notifying Neal and Lisa Withington on behalf of those Withington Franchisees that the prices of the Jurlique Treatments specified in promotional material prepared by J & J Franchising for those Withington Franchisees would be increasing to the same prices as the J & J Franchising day spa at Melbourne Central, in accordance with the provision referred to in paragraph 73(c) above.'
43 The contraventions are set out in the joint submissions:
'52. The ACCC alleges, and Jurlique International and Jurlique Distribution admit, that Jurlique International and Jurlique Distribution contravened the resale price maintenance provisions in section 48 of the Act.'
I so find.
'53. The ACCC alleges, and Jurlique International admits, that Jurlique International was directly or indirectly knowingly concerned in or party to, and aided and abetted particular contraventions of the resale price maintenance provisions by Jurlique Distribution.'
I so find.
'54. The ACCC alleges, and Jurlique Spa admits, that Jurlique Spa was directly or indirectly knowingly concerned in or party to, and aided and abetted contraventions of the resale price maintenance provisions by Jurlique Distribution.'
I so find.
'55. The ACCC alleges, and J & J Franchising admits, that J & J Franchising was directly or indirectly knowingly concerned in contraventions of the resale price maintenance provisions by Jurlique International and Jurlique Distribution, and further was party to, and aided and abetted, particular contraventions by those companies.'
I so find.
'56. The ACCC alleges, and J & J Franchising admits, that J & J Franchising contravened the price fixing provisions in sections 45 and 45A of the Act.'
I so find.
'57. The ACCC alleges, and Dr Klein admits, that Dr Klein was knowingly concerned in, and aided and abetted the breaches by the Jurlique Companies.'
I so find.