THE COURT DECLARES THAT:
Declarations against the First Respondent
The First Respondent, by statements made by:
(a) the Second Respondent in three emails sent to Helen Bell for Lil N Kute on, first, 8 June 2007 and, secondly and thirdly, two emails on 12 June 2007;
(b) the Second Respondent in an email sent to Sally for Fairy Kisses on 10 September 2007;
(c) the Second Respondent in an email sent to Katrina Colla for Frock You on 8 November 2007;
(d) the Second Respondent in an email sent to Jennifer Barker for Mummy's Favourite on 12 November 2007;
(e) the Second Respondent in two emails sent to Nick Chapman for Modern Parents Vintage Ways (MPVW) on, first, 15 November 2007 and, secondly, on 16 November 2007;
(f) the Second Respondent in an email sent to Carli Green for La-La Baby on 15 November 2007;
(g) the Second Respondent in an email to Cheryl for Pastel Pink on 16 November 2007;
(h) Natalie Giles in an email sent to Nick Chapman for MPVW on 11 July 2007;
(i) Natalie Giles in an email sent to Gollygumdrops on 20 August 2007;
(j) Natalie Giles in an email sent to Sue Patman for Jive Baby on 28 August 2007; and
(k) Mary Thomaidis in an email sent to Steve and Suzi Tanic for Yellow Frog on 8 November 2007,
made it known to each recipient of the emails (the Recipient) that the First Respondent would not supply Oobi Baby products (the Goods) to the Recipient unless the Recipient agreed not to advertise for sale and not to offer for sale on the internet the Goods at a price less than the recommended retail price specified by the First Respondent and, thereby, the First Respondent engaged in the practice of resale price maintenance in contravention of section 48 of the Trade Practices Act 1974 (Cth) (the Act) by engaging in acts referred to in sections 96(3)(a) with 96(7)(a) and (c) of the Act.
The First Respondent, by statements made by:
(a) the Second Respondent in three emails sent to Helen Bell for Lil N Kute on, first, 8 June 2007 and, secondly and thirdly, two emails on 12 June 2007;
(b) the Second Respondent in two emails sent to Lilliana Signorelli for Babylush on, first, 25 June 2007 and, secondly, on 26 June 2007;
(c) the Second Respondent in an email sent to Sally for Fairy Kisses on 10 September 2007;
(d) the Second Respondent in an email sent to Katrina Colla for Frock You on 8 November 2007;
(e) the Second Respondent in an email sent to Jennifer Barker for Mummy's Favourite on 12 November 2007;
(f) the Second Respondent in two emails sent to Carli Green for La-La Baby on, first, 15 November 2007 and, secondly, on 19 November 2007;
(g) the Second Respondent in two emails sent to Nick Chapman for MPVW on, first, 15 November 2007 and, secondly, on 16 November 2007;
(h) the Second Respondent in an email sent to Cheryl for Pastel Pink on 16 November 2007;
(i) the Second Respondent in an email sent to Lilliana Signorelli for Babylush on 4 December 2007;
(j) Natalie Giles in an email sent to Deb and Troy Krogh for Chic Mother & Baby on 25 July 2007;
(k) Natalie Giles in an email sent to Sue Patman for Jive Baby on 28 August 2007; and
(l) Mary Thomaidis in two emails sent to Steve and Suzi Tanic for Yellow Frog on, first, 8 November 2007 and, secondly, on 9 November 2007,
attempted to induce each recipient of the emails (the Recipient) not to advertise for sale and not to offer for sale on the internet the Goods at a price less than the recommended retail price specified by the First Respondent and, thereby, the First Respondent engaged in the practice of resale price maintenance in contravention of section 48 of the Act by engaging in acts referred to in sections 96(3)(b) with 96(7)(a) and (c) of the Act.
The First Respondent, by statements made by the Second Respondent in:
(a) an email sent to Rhonda Skinner for Global2U Online Shopping on 24 April 2007; and
(b) two emails sent to Nicole Hosie for Rosiepose on 4 December 2007,
refused to supply the Goods to the recipient of each email (the Recipient) for the reason that the Recipient had advertised or offered for sale, or was likely to advertise or offer for sale, on the internet the Goods at a price less than the recommended retail price specified by the First Respondent and, thereby, the First Respondent engaged in the practice of resale price maintenance in contravention of section 48 of the Act by engaging in acts referred to in section 96(3)(d) with sections 96(7) and 98(1)(a) of the Act.
The First Respondent by statements made by:
(a) (i) the Second Respondent, (ii) Natalie Giles or (iii) Mary Thomaidis in the emails referred to in orders 1 to 3 above; and
(b) the Second Respondent in an email sent to Amanda David for Koukla Angel on 25 September 2007;
used a statement of a price that was likely to be understood by the recipient of each email as a statement of the price below which the Goods were not to be advertised for and not to be offered for sale on the internet and, thereby, the First Respondent engaged in the practice of resale price maintenance in contravention of section 48 of the Act by engaging in acts referred to in sections 96(3)(f) with 96(7) of the Act.
The First Respondent, between late 2005 and March 2008, published terms and conditions of supply on the website http://www.oobi.com.au by which the First Respondent offered to enter into agreements with retailers for the supply of the Goods containing a term that the retailers will not sell, advertise for sale or offer for sale the Goods at a price less than a price that would be specified by the First Respondent and, thereby, the First Respondent engaged in the practice of resale price maintenance in contravention of section 48 of the Act by engaging in an act referred to in sections 96(3)(c) with 96(7)(a) and (c) of the Act.
Declaration against the Second Respondent
The Second Respondent was directly knowingly concerned in, or party to, the First Respondent's conduct of engaging in the practice of resale price maintenance referred to in orders 1(a)-(g), 2(a)-(i), 3(a)-(b), 4(a)(i) and (b) and 5 above in contravention of section 48 of the Act by statements made by the Second Respondent in:
(a) the email sent to Rhonda Skinner for Global2U Online Shopping on 24 April 2007;
(b) the three emails sent to Helen Bell for Lil N Kute on, first, 8 June 2007 and, secondly and thirdly, on 12 June 2007;
(c) the three emails sent to Lilliana Signorelli for Babylush on, first, 25 June 2007, secondly, on 26 June 2007 and, thirdly, on 4 December 2007;
(d) the email sent to Sally for Fairy Kisses on 10 September 2007;
(e) the email sent to Amanda David for Koukla Angel on 25 September 2007;
(f) the email sent to Katrina Colla for Frock You on 8 November 2007;
(g) the email sent to Jennifer Barker for Mummy's Favourite on 12 November 2007;
(h) the two emails sent to Carli Green for La-La Baby on, first, 15 November 2007 and, secondly, on 19 November 2007;
(i) the two emails sent to Nick Chapman for MPVW on, first, 15 November 2007 and, secondly, on 16 November 2007;
(j) the email sent to Cheryl for Pastel Pink on 16 November 2007;
(k) the two emails sent to Nicole Hosie for Rosiepose on 4 December 2007; and
(l) the terms and conditions of supply published on the website http://www.oobi.com.au between late 2005 and March 2008 that the Second Respondent drafted and/or approved and authorised,
and, thereby, the Second Respondent engaged in conduct of the kind referred to in sections 76(1)(e) and 80(1)(e) of the Act.
THE COURT ORDERS THAT:
Injunctions
The First Respondent be restrained, whether by itself, its servants, agents or otherwise, for a period of three years from the date of this order, from:
(a) making it known that the First Respondent will not supply clothing and toys for babies and young children (the Products) to a person (Retailer) unless the Retailer agrees not to sell, advertise for sale and/or display for sale the Products at a price less than a price specified by the First Respondent;
(b) inducing or attempting to induce any Retailer not to sell, advertise for sale and/or display for sale Products supplied by the First Respondent at a price less than a price specified by the First Respondent;
(c) refusing to or otherwise withholding the supply of Products to any Retailer for the reason that the Retailer had sold, advertised for sale and/or displayed for sale, or is likely to sell, advertise for sale and/or display for sale, the Products at a price less than a price specified by the First Respondent;
(d) making a statement of price that is likely to be understood by the Retailer as a statement of a price below which the Products are not to be sold, advertised for sale and/or displayed for sale; and
(e) offering to enter into agreements for the supply of Products containing a term that the Retailer will not sell, advertise for sale and/or display for sale the Products at a price less than a price that is specified by the First Respondent.
The Second Respondent be restrained for a period of three years from the date of this order from being directly or indirectly knowingly concerned in, or party to, conduct by the First Respondent or any corporation which supplies to another person clothing and/or toys for babies and young children (the Products) whether by itself, its servants, agents or otherwise:
(a) making it known that the First Respondent or the corporation will not supply the Products to a Retailer unless the Retailer agrees not to sell, advertise for sale or display for sale the Products at a price less than a price specified by the corporation;
(b) inducing or attempting to induce any Retailer not to sell, advertise for sale or display for sale the Products supplied by the corporation at a price less than a price specified by the First Respondent or the corporation;
(c) refusing or otherwise withholding the supply of the Products to any Retailer for the reason that the Retailer had sold, advertised for sale or displayed for sale, or is likely to sell, advertise for sale and/or display for sale, the Products at a price less than a price specified by the First Respondent or the corporation;
(d) making a statement of price that is likely to be understood by the Retailer as a statement of a price below which the Products are not to be sold, advertised for sale or displayed for sale; and
(e) offering to enter into agreements for the supply of Products containing a term that the Retailer will not sell, advertise for sale or display for sale the Products at a price less than a price specified by the First Respondent or the corporation.
Pecuniary penalty
The First Respondent pay to the Commonwealth of Australia a pecuniary penalty in respect of the conduct of the First Respondent referred to in paragraphs 1 to 5 of these orders in the sum of $40,000 to be paid as follows:
(a) a sum of $10,000 to be paid on or before 6 months following the date of this order;
(b) a sum of $10,000 to be paid on or before 12 months following the date of this order;
(c) a sum of $10,000 to be paid on or before 18 months following the date of this order;
(d) a sum of $10,000 to be paid on or before 24 months following the date of this order.
In the event that the First Respondent makes any default in making any of the payments referred to in paragraph 9 of these orders, which default continues for 14 days, the whole of the outstanding amount of the penalty is to become due and payable by the First Respondent.
Publication order
The First Respondent send at its own expense, within 30 days of the date of this order, a letter to all retailers in Australia to whom the First Respondent supplied Goods during the period from late 2005 to March 2008, in the form of Annexure A to these orders.
The First Respondent, at its own expense within 30 days of the date of this order, publish on its website http://www.oobi.com.au an information notice in the terms of Annexure B to these orders, for a continuous period of 3 months and further that the First Respondent shall use its best endeavours to ensure that such information notice shall be:
(a) a size that consists of at least 40% of the images on screen;
(b) be viewable immediately on screen after the web page is accessed;
(c) remain on screen until closed by the person accessing the website; and
(d) not require a further selection of hyperlinks or scrolling on the screen to be seen.
The First Respondent within 45 days of the date of this order provide to the Applicant a letter signed by a director of the First Respondent advising that it has carried out its obligations under orders 11 and 12 and to which is attached copies of all letters sent to retailers pursuant to order 11.
Compliance Program
For the purpose of ensuring that the First Respondent and the Second Respondent do not engage or be involved in the conduct declared by the Court in this proceeding to be in contravention of section 48 of the Act:
(a) the Second Respondent, within three months of the date of this order, attend trade practices training on Parts IV and VIII of the Act (focussing on section 48 of Part IV and section 96 of Part VIII) and on the responsibilities and obligations in relation to the conduct declared by the Court in this proceeding to be in contravention of section 48 of the Act or any similar or related conduct;
(b) the First Respondent take all reasonable steps to ensure that the training referred to in order 14(a) above is administered by a suitably qualified, compliance professional or legal practitioner with expertise in trade practices law; and
(c) the First Respondent take all reasonable steps to provide a written statement or certificate from the person who conducts the training referred to in order 14(a) above to the Applicant within 14 days of completion of the training verifying that such training has occurred.
OTHER ORDERS
The Respondents pay the Applicant's costs of and incidental to the proceeding in the agreed sum of $10,000 which sum is to be paid on or before 14 days following the date of this order.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
[2]
annexure A - letter to retailers
[To be placed on Oobi Baby Pty Ltd letterhead]
[To Oobi Retailer]
[insert address]
Dear Sir / Madam (or personalise)
Resale price maintenance conduct by Oobi Baby Pty Ltd
Following civil proceedings instituted by the Australian Competition and Consumer Commission, the Federal Court of Australia has found that Oobi Baby Pty Ltd has engaged in resale price maintenance.
Oobi Baby and I admitted liability and consented to the orders sought by the Commission. We engaged in the conduct in ignorance of the law but accept that ignorance is no excuse and that it is incumbent on everyone to be aware of the law and comply with it.
Resale price maintenance involves a supplier setting or seeking to set a minimum price below which its retailers cannot sell, advertise, display, or offer goods for sale. It is prohibited by section 48 of the Trade Practices Act 1974.
The Court has also found that I was knowingly concerned in the resale price maintenance. In particular, the Court has declared that Oobi Baby:
(a) made statements in emails sent to some retailers that it would not supply them with goods unless they agreed not to sell Oobi Baby products below its recommended retail price;
(b) attempted to induce some retailers not to sell Oobi Baby products for less than the RRP by sending them emails;
(c) refused to supply Oobi Baby products to some retailers because the retailers had sold or advertised products at less than the recommended RRP;
(d) set a price that retailers would understand was the price below which Oobi Baby products were not to be sold; and
(e) published trading terms on its website that required retailers not to sell goods at a price less than a price specified by Oobi Baby.
As part of the Court's orders Oobi Baby must write to each of its retailers advising them of the outcome of the proceedings and informing them about the prohibition under section 48 of the Act against engaging in resale price maintenance, as defined in section 96 of the Trade Practices Act. Oobi has also been ordered to pay a penalty of $40,000 and I have to undertake practical training in the operation of the Trade Practices Act. The Court has also granted injunctions preventing Oobi Baby from engaging in resale price maintenance for a period of three years.
As a retailer of Oobi Baby products, you are free to set the price at which you advertise or sell our products you purchase from us.
Any RRP used by us (or any other supplier for that matter) is a suggestion only. Your freedom to independently set your own prices for, and offer any discounts on, products is protected by the Trade Practices Act.
I have enclosed for your further information an ACCC publication titled Resale Price Maintenance. You can also obtain further information about the proceedings against Oobi and the Act generally from the ACCC website at www.accc.gov.au.
Yours sincerely
Alexandra Riggs
[Preferred Title and Signature Block]
[3]
annexure B - website notice
Resale price maintenance prohibited
Following civil proceedings instituted by the Australian Competition and Consumer Commission, the Federal Court of Australia has declared that:
· Oobi Baby Pty Ltd has engaged in resale price maintenance; and
· Oobi Baby's sole director and manager, Ms Alexandra Riggs, was knowingly concerned in the resale price maintenance.
Oobi Baby and Ms Riggs admitted liability and consented to the orders sought by the Commission. We engaged in the conduct in ignorance of the law but accept that ignorance is no excuse and that it is incumbent on everyone to be aware of the law and comply with it.
Resale price maintenance involves a supplier setting or seeking to set a minimum price below which its retailers cannot sell, advertise, display, or offer goods for sale. It is prohibited by section 48 of the Trade Practices Act 1974.
Oobi Baby has been ordered by the Court to publish this notice to alert other businesses to the prohibition on suppliers setting minimum prices below which goods are not to be sold or advertised.
Importantly:
· Any recommended retail price nominated by a supplier to a reseller is a suggestion only.
· Retailers are free to set their own prices for, and offer discounts on, the products they sell.
The Federal Court has also ordered Oobi Baby to pay a penalty of $40,000.
For more information on resale price maintenance and your rights under the Trade Practices Act generally, please visit the ACCC website at www.accc.gov.au.
IN THE FEDERAL COURT OF AUSTRALIA
[4]
BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
[5]
REASONS FOR JUDGMENT
1 The first respondent, Oobi Baby Pty Ltd, is a company that is controlled by the second respondent, Ms Riggs, she being the company's sole shareholder and director. Oobi Baby designs and imports clothing and toys for babies and young children which it sells to retailers. The applicant, the Australian Competition and Consumer Commission, alleged that during the course of its business Oobi Baby engaged in resale price maintenance in contravention of s 48 of the Trade Practices Act 1974 (Cth) and that Ms Riggs was knowingly concerned in those contraventions and brought their action to obtain appropriate relief. Oobi Baby and Ms Riggs conceded the contraventions occurred and that Ms Riggs performed them. They joined with the ACCC in filing submissions as regards the appropriate orders that should be made. I granted the relief sought which took the form of declarations of contraventions, injunctions restraining future contraventions, the imposition of a penalty of $40,000 and publication and compliance training orders. What follows are my reasons for granting that relief.
2 Oobi Baby sells its products through its website. It makes no sales directly to the public. Oobi Baby has only a small part of the children's toy and clothing market. It employs four full-time employees, including Ms Riggs and her husband, and engages one independent contractor. In the 2006/2007 financial year, Oobi Baby had a turnover of $958,541 from which it derived a net profit after tax of $128,622.90. The net profit for the 2007/2008 financial year is estimated to be $268,041.34.
3 Section 48 prohibits resale price maintenance. It is a per se offence. Sections 96 and 96A describe the conduct that constitutes resale price maintenance. Relevantly for present purposes, the following conduct by a supplier when dealing with another person (the recipient) constitutes resale price maintenance: (1) making it known that the supplier will not supply goods unless the recipient agrees not to sell them at a price below the supplier's recommended price (s 96(3)(a)); (2) the supplier inducing, or attempting to induce, the recipient not to sell the goods at less than the supplier's recommended price (s 96(3)(b)); (3) the supplier entering into an agreement to supply goods, or offering to enter into such an agreement, which includes a term that the goods not be sold at a price less than the supplier's recommended price (s 96(3)(c)); (4) the supplier withholding goods where the recipient has sold, or is likely to offer for sale, the goods at a price less than the supplier's recommended price (s 96(3)(d)); and (5) the supplier using, in relation to goods, a statement of price likely to be understood by the recipient as the price below which the goods should not be sold (s 96(3)(f)).
4 The infringing conduct engaged in by Oobi Baby arose out of dealings with 15 retailers. The offending conduct occurred over a period of approximately nine months between April and December 2007. It occurred when retailers sold the products purchased from Oobi Baby at below what Oobi Baby regarded as an appropriate price. Sometimes this happened by virtue of the mode of sale, for example by offering Oobi Baby products for sale via internet auction sites.
5 In most cases the contravening conduct is evidenced by 24 emails sent by Oobi Baby to its retailers, comprising 19 separate acts of resale price maintenance. The emails were sent at the direction of Ms Riggs. In broad outline the emails can be grouped into four categories. Category one emails contained statements in which Oobi Baby made it known to the retailer concerned that products would not be supplied unless the retailer agreed not to sell at a price less than the recommended retail price (s 96(3)(a)). An example reads: "Anyone who is unwilling to adhere to the RRP will in the future no longer be able to stock Oobi". Category two emails contained statements by which Oobi Baby attempted to induce the retailer not to sell products at a price less than the recommended retail price (s 96(3)(b)). An example of this type of email reads: "I think that absolutely everyone will be putting up their prices if they haven't already (if you see anyone who isn't drop me a line and I'll confidentially have a word with then)." Category three emails contained refusals by Oobi Baby to supply retailers by reason that the retailer was selling products at a price less than the recommended retail price (s 96(3)(d)). An example reads: "Although we have asked you to adhere to the RRP (as is stated in our Terms and Conditions on our website: http://www.oobi.com.au) you have been discounting and we feel that we are unable to monitor this. Therefore we reluctantly have to discontinue supply to your store as we cannot guarantee that you will commit to our terms."
6 One additional email was specified in category four. Emails in each of categories one, two and three, as well as the email in category four, amounted to Oobi Baby using, in relation to products to be supplied or that may be supplied to the retailers, a statement of price likely to be understood as the price below which goods are not to be sold (s 96(3)(f)). An example from the category four reads: "If you are a web-based reseller then there is 100% mark-up plus GST (for example $10 w/s plus GST x 100% = $22.00 RRP)."
7 In one case the contravening conduct (s 96(3)(c)) was constituted by the publishing of "Supply Terms" on Oobi Baby's website containing the following term:
Oobi Baby&Kids does not supply Ebay stores, auction sites or any discount stores, websites or similar. Stores found selling our products on Ebay or undercutting on current stock will be immediately deleted from our system. We reserve the right to insist that you remove all items from any auction, underselling or Ebay store should we find that you are selling Oobi Baby in this way. By acceptiing [sic] our orders you accept these terms.
8 The despatching of the emails and the publication of the "Supply Terms" justified the making of declarations of contraventions and the grant of injunctions restraining future contraventions.
9 So far as the penalties were concerned many cases have examined the Court's task in considering a joint position on penalties. The applicable principles are authoritatively dealt with in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 and Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; [2004] ATPR 41-993. I do not need to recite them here. The upshot of the authorities is that the Court should not depart lightly from a joint position put forward by the parties. The inquiry to be undertaken is not whether the Court would have arrived at the same figure as the parties, but whether the proposal fixes an appropriate amount "within the permissible range" of penalties that might properly be imposed: NW Frozen Foods at 291.
10 The parties suggested a $40,000 penalty be imposed on Oobi Baby, payable by four six monthly instalments. No separate penalty was sought against Ms Riggs.
11 Ordinarily, when there have been 20 contraventions of s 48 a penalty greater than $40,000 ought to be imposed. It is clear that Parliament views acts of resale price maintenance seriously, deeming them to be contraventions without proof of any adverse effect on competition. It is simply assumed that a contravention will have that effect. In my view, however, a penalty at the lower end of the scale was justified in the circumstances. A number of factors led me to that conclusion. It is a well settled proposition that the imposition of penalties is directed at deterrence, both specific and general. In this case a penalty of the size proposed would have the requisite deterrent effect. It represents a significant financial obligation for a small company in its fledgling years, but it is not so high as to be oppressive. Additionally, while the conduct was undertaken deliberately and systematically, it was done in ignorance of the law. That is, Ms Riggs simply did not know what she was doing was illegal. I had the impression she was somewhat shocked to discover that her attempt to prop up her brand was unlawful. I also took into account by way of mitigation the small scale of the conduct in the context both of Oobi Baby's business operation and its market share. Finally, there was the willingness of Ms Riggs to co-operate fully in the investigation by the ACCC at an early stage.
12 I accepted that a separate penalty should not be imposed on Ms Riggs, despite her orchestration of the conduct. As sole shareholder of Oobi Baby, Ms Riggs will feel the burden of the penalty imposed against the company. In the 2007/2008 financial year, Ms Riggs drew a salary of $50,000, having previously drawn $20,000 per annum since the company's inception in 2005. Ms Riggs' husband likewise also draws a salary of $50,000. When the penalty is accounted for they will take less from the company. In these circumstances it is a legitimate course to avoid punishing Ms Riggs twice over for what is, in effect, the same conduct: Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617; (2007) 244 ALR 673 at [294], Australian Competition and Consumer Commission v Commercial and General Publications Pty Ltd (No 2) [2002] FCA 1349;[2002] ATPR 41-905 at [27]-[29], Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd [2000] FCA 997; [2000] ATPR 41-777 at [13].
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.
[6]
Associate:
Dated: 7 October 2008
Counsel for the Applicant: D Star
[7]
Solicitor for the Applicant: Corrs Chambers Westgarth