Trade Practices Commission v. Allied Mills Industries Pty Ltd [1980] FCA 133

Federal Court of Australia|1980-07-01|Before: Sheppard J

Practice and procedure - applications to strike out whole or part of statement of claim - particulars of arrangements, understandings and conspiracies said to be vague and unspecific - significance of particulars of parallel pricing - allegations of conspiracy to make unlawful arrangements and enter into unlawful understandings - Trade Practices Act 1974, ss.45(2),

TRADE FRACTICHS COMMISSION v. ALLIED MILLS INDUSTRIES PTY, LIMITED

IN_TRE FEDERAL COURT OF AUSTRALIA KEW SOUTH WA4LeS DISTRICT REGISTRY V.G. No. 29 of 1979 GENER»L DIVISION

In the matter of - THs TRADE PRACTICES ACT 1974 Between TRADE PRACTICES CUMMISSTON Applicant

JUDGE MAKING ORDER: SHEPPARD J. WHERE MADE: SYDNEY DATE OF ORDER: 25 September, 1980

The applications to strike out the whole of the statement of claim be dismissed.

The applications to strike out paragraohs 13, 15, 17 and 19 thereof be uvheld and those naragraphs struck out accordingly.

The balance of notices of motion and question of

NEW SOUTH WALES DISTRICT REGISTRY V.G. No. 29 of 1979

These ere applications by each of the respondents to

strike out the whole or part of the amended statement of

claim in this matter. I shall hereafter refer to the amended

are made notwithstanding the fact that all respondents have

pleaded to the statement of claim, and that they have had

discovery and answers to interrogatories by the applicant,

No argument was put that the avnplications were too late, no

doubt because the furnishing by the applicant of particulars

of allegations in the statement of claim nas been an on-going

process. Until particulars were finally furnished, the

respondents could not be sure what case they had to meet.

Two submissions of substance were made. The first was that the statement of claim, when read with the particulars, disclosed no cause of action against any of the respondents, with the result that it should be struck out in its entirety. The second was that those paragraphs of the statement of claim which charged con- spiracy on tne part of the corporete respondents should be struck out.

The paragraphs of the statement of claim, other than those alleging conspiracy, allege a number of breaches of s.45 of the Trade Practices Act 1974, The principal allegations are that tne corporate respondents made arrangements, or entered into understandings, which are in breach of that section. The particulars furnished both in the statement of claim itself and by letter, purport to give particulars of the arrangements or understandings which are relied upon. The particulars so furnished are not identical as regards each respondent.

The essence of the first submission was that the particulars furnished against each respondent in respect of the material paragraohs of the statement of claim, both those alleging breaches of s.45 and those alleging con- spiracy, were so scant as to be no particulers at all, Furthermore, so it was submitted, the position plainiv

revealed by a consideration of the statement of claim end

the particulars, was that if evidence of the matters specified in the particulars were led, there would he, at the end of the applicant's case, no evidence of any of the arrangements, understandings or conspiracies relied upon by the applicant. The subdmission was that this was clear to demonstration. The case was thus said to be within that class of case where the Court will exercise its summary powers; Dey v. Victorian Railways Commissioners((1949) 78 C.L.R. 62) and General Steel Industries Incornorated v. Commissioner for Railways (N.S...) ( (1964) 112 C.L.R. 125),

It was agreed that the strongest case for the striking out of the entirety of the statement of claim could be made by the third respondent, the particulars of matters implicating it being the least specific. If its argument were to fail, those of the other respondents must meet a similar fate. If on the other hand the application of the third respondent were to be upheld, it would be necessary to consider the particulars against each respondent in turn in order to decide whether the result should be the same in the cases brousht against them. The separate argument in relation to the paragraphs alleging conspiracy is founded on different considerations. In relation to it, all respondents stand in a similar situation.

statement of claim and to particulars relied upon in

those given in respect of the allegations made against

the third respondent of its involvement in the arrange- nents, understandings and conspiracies said to have existed, The relevant paragraphs of the statement of claim are paragraphs 12, 13, 14, 15, 16, 17, 18, 19, 29 and 30, To each of these paragraphs were appended certain particulers. Paragraphs 12, 14, 16 and 18

allege the making by the corporate respondents of arrange~ ments, or the entering into by those respondents of understandings, wnick were unlawful by reason of the operation of s.45(2)(a) of the Act in the form in which

it was before 1t was amended in 1977 (Act No.81 of 1977). Paragraph 29 alleges that the same respondents, until

30 June 1977, gave effect to such arrangements or under- standings. Paragraph 30 alleges that the corporate respondents on and after 1 July 1977 gave effect to the same arrangements or understandings. The difference between paragraphs 2S and 30 1s explained by the coming unto force of the Trade Practices Amendment Act 1977 on

1 July 1977. Paragraph 29 alleges breaches of s.45(2)(b) of the Act in the form in which it was prior to 1 July 1977. Paragraph 30 alleges breaches of s.45(2)(b) of the Act as it was thereafter. Effectively, however, both paragraphs allege that the corporate resvondents gave effect to the arrangements and understandings made or entered into as

Paragraphs 13, 15, 17 and 19 of the statement of claim allege a series of conspiracies against tne corporate respondents. In each case the conspiracy alleged is one in which the respondents are said to have conspired together to make an arrangement, or enter into an understanding charged in the preceding paragraphs.

For instance, the conspiracy alleged in paragraph 13 is that the corporate respondents, in and between June and October 1976, conspired together to make an arrangement or enter into an understanding whereby the prices at which the corporate resnondents would sell liauid glucose would be increased as from Cctober 1976 or thereabouts.

The charges of conspiracy are based upon s.76(1)(f) of the Act, which provides in effect that if the Court is satisfied that a person has conspired with others to contravene a provision of Part IV of the sct, the Court may order the person to nay to the Commonwealth the penaities provided for in tne section. Section 45 is in Part IV of the Act.

I should pause to say that, during tne argument, senior counsel for the third respondent provided a useful abridgement of the statement of claim whick contains the paragraphs of the statement of claim to which I have referred, and others as well, It provides a convenient method of referring to the relevant parts of the staterent

or claim. Accordinsly I have appended copies of it to

this gudgment, rather than copy out within it in extenso the various provisions,

I should next refer to the particulars forming part of the statement of claim. Those appended to paragraph 12, insofar as they relate to the third respondent, say that the arrangement was made, or the understandins was entered into at or as a result of meetings and other communications between representatives of the corporate respondents in and between June and October 1976. The meetings were said to include a meeting on or about 6 September 1976 at the vremises of the Flour Millers Council of New South wales, at whicn representatives of the corporate respondents were present. The arrangement or the understanding was to the effect that the corporate respondents would increase their prices for liquid glucose to about $275 per tonne for glucose delivered in bulk by tankers, that there would be a surcharge for deliveries in drums, that there would be a surcharge for supplies to customers of any other corporate respondent, and that the increase would take effect as from October 1976 or thereatouts. It was further and alternatively seii that the arrengement or the understanding was initiated at the meetings referred to above, and during other com~unications in and between June and October 1976 later particulerised,

anc so mede or entered into when the corporate resvondents

proceeded to act in the manner discussed during such meetings and communications, and were able to observe that each of the other corporate respondents was also acting in like manner. Each of the corporate respondents was said to have notified its customers in about September 1976 that its prices for linuid glucose would be increased as from October 1976 or thereabouts, and in October 1$76 or thereabouts the corporate respondents in fact increased their prices in the renner particularised above. A number of communications were then specified. The only category of communic-tion affecting the third respondent was aaid to be communi- cations between representatives of the corporste respondents on or about 23 August 1976,

The particulars were amplified in a letter dated 27 November 1979 written by the applicant's solicitor to the third respondent's solicitor. Relevantly, that letter said that representatives of the third respondent were alleged to have been present at only two of the meetings referred to in the particulers apvyended to paragraph 12 of tne statement of claim, I should interpose to say that the particulars seem only to allege the presence of the third resnondent at one of the meetings particularised in that parerraph, One of the meetinss referred to in the particulars provided in the letter of 27 November 1979 is alleged to have been a meeting on or about 6 September

One Nr. J. N. Love is alleged to nave been the

representative of the third respondent present at such meeting. The particulars state that the meeting discussed the over-supply of glucose on the Australian market, the extent of the competition existing in that market, and the raising of prices for liquid glucose, The third respondent sought further particulars of the meeting referred to, No further particulars to those Set out above have been provided. # letter from the applicant's solicitors dated 29 May 1980 said that the applicant was unable to give the substance of specific stetements made during the course of the discussions by any particular participant,

The only other meeting at which a representative of the third respondent is alleged to nave been present was particularised as follows:

"The meeting was held during the week ending 16 September 1976 in Sydney. The name of the person present at the neeting as the represen- tative of the third respondent is not presently known to the applicant. The substance of the discussion was the raising of the prices for liquid glucose", No further particulars of the substance of the discussion at this meeting have been provided. The applicant's solicitors! letter of 29 May 1980 said: "The applicant 1s unable to provide further particulars of the substance of the dis- cussions", Tne third respondent also sousht particulars of the

basis upon which it was alleged thet one of the persons

present wes a representative of the tnird respondent. The

applicant's solicitors said that the applicant was unable te provide further particulars.

The third respondent also sought particulars of the other communications there referre'i to. Only one such communication is alleged to involve representatives of the third respondent. The particulars say:

"The communication took the form of discussions between the persons present om or about 25 August 1976. Representatives of the first, second, third, fourth and fifth respondents were present. Ilessrs. Street and Schrader represent- ed the first respondent. The names of the other representatives are presently not known to the applicant. t will be alleged thet tne communi- cation included discussions on the merketing of glucose and the raising of prices for liquia

The third respondent sought particulars of the basis upon whicn it was alleged there was a representative of the third rescondent present at the meeting. The applicant's solicitors said thet the applicant was unable to provide further particulars. The third respondent also sought further particulars of the substance of the communication and discussion at the meeting. The follow- ing particulars were furnished:

"The substance of the discussion was a proposal by ilanildra that it woulu cease the manufacture of glucose provided it could be given an assur- ance of sale of the flour produced by it and at that time used in the production of glucose, The merketing of glucose by Allied Mills and by other companies was discussed in general terms. The applicant 1s unable to provide further particulars."

Peragraph 14 of tne statement of claim has varticulars

"The applicant refers to and repeats the particulars to paragraph 12 and will also rely upon the inferences to be Grawn from the subseyuent conduct of the corporate respondents referrec to in paragraphs 29 and 30 hereof."

I have already mentioned the allegations made in paragraphs 29 and 30. The particulers appended to those paragraphs are the same. They say:

"The corporate respondents and each of them abided by the said arrangements and under- standings and complied with and implemented the same."

Further particulars of the notifications of price increases have been supplied, Further varticulars of the actual increeses of prices have also teen surplied. These are to a degree incomplete and additional particulars are being supplied by the applicant's solicitors.

Particulars of the conspiracies which were furnished in support of paragraphs 13, 15, 17 and 19 of the statement of claim were identical witn the particulers furnished in support of the arrangements and understancings, save thet the applicant does not rely on the notification of price increases or the actual charging of increased prices as evicence of them.

I agree with submissions by senior counsel for the third resnondent that narticulars of 1ts involvement in meetings eat which it is allegea thet there were discussions

about the raising of the prices for lijuia glucose are

scant. The applicant is unable to say what was said at

the meetings; it is unable to say what part in them

the third respondent's representative took; and it 1s unable to say who the third respondent's representative at the second meeting was. It was in these circum- stances that counsel submitted that the particulars were no particulers at all. It was inconceivable, so his submission ran, that there could be evicence of a meeting yet no evidence of what was said at it, and that there could be evidence that the third respondent had a representative at a meeting yet no evidence to identify him. Accordingly, the allegation that the third respon- dent had been present at two meetings at which the raising of prices for liquid glucose had been discussed ought te be put aside.

That left the allegations concerning the notification of price increases and the actual prices charged as from October 1976. These should, so it wes submitted, be regarded as the only allegations in the statemert of claim against the third respondent uvon which the applicant could rely. It was then submitted that allesations of notifica- tions of price increases enc tne charging of those increases could not be evidence of the arrancsements and understanaings charged against tne third respondent. It was not charged, as I neve mentionec, that they were evidence of the conspiracies. In tne colourful example provided by senicr counsel for the second respondent, who sunvorted the sur~

missions made on behalf of the third resnondent, the fact

that 100 mice, when relessed from a cage, will make for the cheese does not susgest they had a meeting and reached an understancins before doing so.

in Trade Practices Commission v. kmail Limited (]¢a6)

"Parallel conduct nay constitute circumstantial evidence from which an arrangement or understand- ing may be inferred. It depends on the facts of each case, In the present case, tne respondents point to a large nunber of matters in suovort of their contention that the inference of an arrangze- Ment or understanding cannot te supvorted. Flainly, when a credible explanation is given by a defendent it may be sufficient to negate the inference of an arrancerent or understendine: see TPC v. Nicholas Enterprises Ety., Limited (1979) ATER 40-125,

In the U.S.a. there is powerful authority for the proposition that, while paraliel business conduct may provide circumstantial evidence from which an inference as to the existence of an unlawful asree- ment may te drawn, it is not sufficient by itself to support an allegation of conspiracy under the Sherman Act and it may te the result of independent decisions of competitors or other economic forces. See for examole Theatre Enterprises Inc. v. Paramount Film [Distributing Corporation (1954) 346 U.S. 537;

Esco Corporation 7. United states (1965) 340 F.2d 1000;

U.s. v. *.h.c. Corporation (1909) Trade Cases 187,405;

Bo osian v. Gulf Oil Corporation (1975) Trade Cases

Thste ances where 'parallel pricing in resnect of honogeneous products has resulted, not from parallel business conduct, but fron independent decisions of competitors and intense competition are poet Dairv

Co. v. U.S. (1949) 178 F.2¢ 363; U.S. v. Ward Sakine Co. (1e05) 243 F. Sunp.713; and UlS. v. National Malleabla & Steel Castines Co. (1557) Trade Cases f[68,800, affirmed on apoeal (1958) 358 U.S. 38." In my view what nis Honour has said gives the responden little comfort. The opening words of the passage I nave cited say that parallel conduct may constitute circum-

stantial evidence from which an arreneement or understending

may be inferred. It depends on the facts of each case, Email was a prosecution which, upon its facts, failed because there was no proof of an understanding or srrange- ment. That conclusion was reached, however, only after senior executives of the respondents had siven evidence negativing any arrangement or understanding.

Accordingly, I do not regard the decision in mail as one which says that 1n no circumstances will evidence of parallel pricing provide evidence of an arrangement or understanding. There are cases in which it may do so.

In a case where that was the only allegation one vould certainly hesitate for a long time before striking out the statement of claim, particularly bearing in mind the principles which are to be applied in the determination of such an application.

This 1s not a case where that 1s the only allegation. The perticulars of the tnird respondent's varticipation in the two meetings at which there were alleged to be discussions about the price of glucose may be scant. It may be difficult to imagine how admissible evidence of wnat the applicant alleges will be able to be led. However, if 1t be established that the third respondent was represented at meetings at which sellers of liquid Blucose discussed the price of their product, ane it be further established tnat they notified similar price increases and began to charye those prices, it btecomes

impossible, 1n my opinion, to say that there is not - to use

the words of Dixon J. (as he was) 1n Dey v. Victorian Railways Commissioners - "a real cuestion tc be tried", (78 C.L.R. at p.91), or, to use the words of the Chicf Justice in General Steels (112 ©.L.R. at p.129), that the respondents have "clearly demonstrated" that the statement of claim and the particulars disclose no cause of action,

Accordinsly, the application by the third respondent to strike out, as against it, the whole of the statement of claim will be refused. As earlier mentioned, it had the strongest case in this respect. It follows that Similar applications made by the other respondents wiil alse pe refused,

I turn to consider the avplications to strike out the paragraphs of tne statement of claim which alleged conspiracy. They are paragreohs 13, 15, 17 and 19.

Again reliance was placed upon the scant particulars which were furnisned and I have in a sense dealt with that submission already. However, all respondents relied on more fundamental submissions in order to demonstrate that the applicant's case, insofar as it was founded on conspiracy, was plainly untenable. I have already referred to the terms of paregraph 13 cf the statement of claim, end 1t 1s set out in the appendix hereto. The particulars appended to 1t are:

ana between June and October 1976 at the meetings and during otner communications

1S are: "The applicant refers to and repeats the particulars to paragraph 13."

Effectively then the particulars relied upon in support of the conspiracies which are alleged are those @iven in respect of paragraph 12 excent insofar as they relate to notifications of price increases end the charging of the increased prices.

As the respondents submitted, there is difficulty in embracing theconcept basic to the allegation of con- spiracy made 1n each of the paregraphs of a conspiracy to make an arrangement or enter into an uncerstending.

It is to be emphasised that the conspiracies charged are not conspiracies to raise or maintain the price of liquid glucose, nor are they conspiracies to exhort, incite, encourage or persuade persons to make arrangements or enter into understandings to do so, The conspiracies are Said to be conspiracies tc make arranzem=nts or to enter into understanding themselves made unlawful by the Act.

It was in those circumstances that counsel for the first responient submitted tnat, as a matter of construction, the Act did not mzke unlawful a conspiracy to make an arrangem:.nt or enter into an understending. Such a concept was tautologous. Notwithetending the words of s.76(1)(f) of the Act earlier referrei to and its express

application to s,45, I think there 1s force in his argument.

But it was not one - ani I indicated this during the course of the neering - with which I was prepsred to deal on a summary application to strike out a pleading. I said if I were against the principal submissions relied upon in support of the application to strike out the conspiracy paragraphs, I would allow the motter to be raised as a point of law, and would dispose of it before the main hearing of the proceedings commenced,

For the purpese of this application I am prepared to assume that it is permissible to charge a conspiracy to meke an arr ngement or enter into an un"erstanding made unlawful by s.45 of the Act. Although I am prepared to meke that assumption that is by no means the end of the matter. It becomes criticai to analyse the particulars furrishec in respect of the alleged consviracies,

I should sey at this point that during discussion with senior counsel for the apnlicant I raised with him the nuestion of whether the allegations in paragraphs 13, 15, 17 ana 19 of the statemert of claim and in the particulars sufficiently put the case he wished to make. He said he wished to consider the matter, and I adjourned early on the first day of tne hearing to enable him to do so overnight. Tne next morniny he told me quite firmly tnet after due reflection andi after the teking of instructions there was to te no application to amend

either th particulars furnished 1n the statement of claim

or any of its paragraphs, nor was eny addition to ecither to be made.

The particulars appended to paragraph 13 refer one to those furnished in respect of paragravh 12. For that reason there was no occasion for the respondents to seek by letter further particulars of any allegations other than those made in paragraph 12, Those particulars have already been referred to and are fully set out in the appendix to this judgment. They particularise meetings and other communications which led to the making of the arranzement or the entering into of the understanding alleged in paragraoh 12. They give particulars of wnat the terms of the arrangement or understanding were. Alternatively, they say that the arrangement or under- standing was initiated at the meetings and in the communications relied upon, and was made or entered into when the corporate respondents proceeded to act in the manner discussed during the meetings and in the communications. The particulars appended to varagraph 13 make 1t clear, however, as 1 have eerlier said, that that alternative wey of putting tne case is not relied on in respect of the allegations of conspiracy. Counsel fo1 the anplicent stressed thit mattcr to me during the course of the argument.

Tnus the particulars which are relied upon in support of the allegations of conspiracy are perticulars elleging

the naking of an actual arranrement or the entering into

of an actual understanding; tnere are no other relevant particulars.

It should be observed at tnis point that a conspiracy is, itself, an agreement, I refer to three judgments of

Newland & ors. (1953) 2 All &.R. 1067 Goddard L.J. said

(p.1071): "A conspiracy consists of agreeing or acting in concert to achieve an unlawful act or to do a lawful act by unlawful means." In R. v. Smith (1963) 3 All £.R. 597 the Court said (p.601): "The terms agreement, confederacy, acting in concert and conspiracy all pre-suppose an agreement express or by implication to achieve a comnon purpose, ..." in R. v. O'Brien (1974) 59 C.A.R. 222 the Chief Justice said (p.225):

What, then, is the gravamen of the allegation made in the conspiracy paragraphs bearing in mind the particulars that neve been furnished. It is that tne corporate respondents conspired, that 18 agreed, to make an arrange- ment or enter into an understanding vhereby, to take paregrapn 13 of the statement of claim as an example, the prices at which such resvondents would sell liquid flucose would be increased as from October 1976 or tnereabouts. The conspiracy, that is the agreement, is said in the particujers appended to paragreph 13 to have been entered

uvon at the neetings and during tne other communications

particularised under paragraph 12. The meetinzs and communications there referred to are alleged to te the meetings and comnunications in which the arranzement or understanding charged in paragraph 12 was made. Paragraph 12 and ats particulars cannot be read otherwise. In those circumstances although a ccensviracy to make an agreement or enter into an understanding is alleged there cannot, by reason of the particulars, be in fact more than the arrangement or understanding particularised in paragraph 12. That must be the conspiracy wnicn 1s cnerged. Thus the consnirecies relied upon are also the arranzements or understandings alleged in the other para- graphs in the statement of claim. Whatever the operation of s.76(1)(f£) of the Act may be in relation to s.45, i am satisfied that it is not apvropriste to charge, as an alternative to charging arrangements or understandings made unlawful by s.45, conspiracies which are themselves such arrangements or understandings. The paragravhs in terms do not purport to do this. They charge consviracies to make unlawful arrangements or to enter into unlewful under- standings, but the paragraphs must be read subject to the particulars which have been provided, when that is done 1t becomes clear that the conspiracies on the one hend end the arrangerents ana understendines on tre otner are identical. That ig plainly ano demonstrably a situetion whicn tne Act aoes not xermit or provice for. Accordingly,

the paragraphs charging conspiracy will be strucx out.

the approach of Denning L.J. (as he then was) in Ward v.

Lewis & ors. (1955) 1W.LR. 9. One of the ~uestions in that case was whether, in an action for defemation sgainst two or more defendants, it was permissible to add a count of conspiracy to defame the plaintiff. His Lordship

"It is important to remember (end we had a case only lest week on this point) that when a tort hes been committed by two or more persons an allegation cf a prior conspiracy to commit the tort adds nothing. The prior agreemcnt merges in the tort. A party 1s not ellowed to gain an added advantege by charsing conspiracy when the agreement nas become merged in the tort. It is sometimes sought, by chargins conspiracy, to get an added advantage, for instence in proceedings for discovery, or by getting in evidence which would not be admissible in a straight action in tort, or to overcome substantive rules of law, suck as here, the rules about republication of slanders, 'then the court sees attempts of that kind beiney made, 1t will discourage tnen by striking out the allegation of consviracy, on the simple prounc that the consnirecy adds nothing when the tort has in fact been conmitted.""

I refer also to Rubenstein v. Trutn and Sportsmen Limited

(196C) V.R. 473 at p.477. Counsel for the plaintiff sourht to say that the

paragraphs charging conspiracy were capable of sunportins

a case of two or more of the corporate respondents vin,

conspired (arreed) to make en arrangement or enter into an underst=nding to maintain or raise th: vrice of glucose at sone tite in tne future, 2ut that 1s not wnat 1s

counsel declined to amend, are not, in Ty opinion, capable of supporting such 2 Case.

Furthernore, so far as concerns tne paragrachs supportin® a case 1n which two or more of the corporate

respondents are alleged to nave conspired, it should

be recalled that the statement of claim in 1¢s orizinal form alleged conspiracies by the corporate resvondents, "or two or more of them", Tnat allegation is not made in the amended statement of claim now under consideretion,

For the reasons I have given, the applications made by the respondents thet tne whole of the amended statement of claim be struck out are refused, but their applications tnat paragraphs 13, 15, 17 an? 19 thereof be struck out are upheld. Those paragraphs ere struck out accordingly. That makes it unnecessary for the point of law relied uvon by counsel for the first respondent to be dealt with.

The balance of the notices of motior seek further particulars whicn I understand the applicant is prepared to give. There is also the guestion of the costs of the

(For discussion which ensued see trenscript p.412).

a. wan » adi Icert'fy that ta crt he QC preceding "4,2 2150ns for

{a) Is and was at all material times a trading corporation within the meaning of the Act duly

incorporated pursuant to the laws of the Australian

(b) At all material times carried on business, inter alia, as a supplier of liquid glucose to the

On or about 6 September 1976 alternately in and between June and October 1976 the corporate respondents and

each of them made an arrangement or entered into an under- standing whereby the prices at which they and each of them would sell liquid glucose would be increased as from October

The said arrangement was made or the said under- standing was entered into at or as a result of meetings and other communications between represent- - atives of corporate respondents in and between June and October 1576. The meetings included a meeting on or about 16 august 1976 at which representatives of the first, fourth and fiftn named respondents were present, (the representative of the first named respondent being the sixth named respondent), and

a meeting on or about 6 september 1976 at the premises of the Flour tillers Council of New South Wales at which representatives of the corporate respondents were present, (the representative of the first named respondent being the cixth named respondent). The said arrangement or the said understanding was to the effect that the corporate respondents would increase their prices for liquid glucose to about :275 per tonne for glucose delivered in bulk by tankers; that there would be a surcharge for deliveries in drums; thet there would be a surcharge for supplies to customers of another corporate respondent; and that the increase would

Further and alternatively the said arrangement or the saic understanding was initiated at the meetings referred to above and during the other communications

in and between June and October 1976 verticularised

below and was made or entered into when the corsorate

respondent proceeded to act in the manner discussed during such meetings and comrunications and were able to observe that each of the other corporate respon- Cents was also acting in like manner. Fach of the corporate respordents notified their customers in abcut September 1976 that their prices for liaguid glucose would be increased as from October 1976 or thereabouts, and in October 1976 or thereabouts the corporate respondents in fact increased their prices

Communication between the sixthnamed respondent on behalf of the firstnamed respondent and Mr Stuart Clelard, the general manager of the fifthnamed

fourthnamed respondent (Mr Honan) and Mr Cleland in

and between June and Octoher 1976 conspirea together to mate

an arrancerent or enter into <n understan@eing whereby the

prices at which the corporate respondents would sell liquid glucose would be increased as from October 1976 or

The said conspiracy was entered upon in and between June

fae and October 1976 at ® meetingsand during the other

communications particularised under paragraph 12 above.

Further and alternatively, on or about 6 September 1976 alternatively in and hetween June and October 1976 the corporate respondents and each of them made an arrangement or entered into an understanding whereby as from Octcber 1976 or thereabouts none of them would underbid for the supply of liquid glucose to the existing customers of any

PARTICULARS The applicant refers to and repeats Particulars to paragraph 12 and will also rely upon the inferences to be drawn from

the subsequent conduct of the corporate respondents referred

Further and alternatively, the corporate respondents

in and between June and October 1976 conspired together to make an arrangement or enter into an understanding whereby as fror October 1976 or thereabouts none of them would underbi.? for the supply of liquid glucose to the evisting

custcrers of any of the othe corporate resnondents.

The anplicant refers to and repeats the Particulars to

Further and alternatively on or about 6 September 1976 alternatively in and between June and October 1976 the corporate respondents and each of them made an arrangement or entered into an understanding whereby as from October 1976 or thereabouts each of them would preserve to the others their existing customers by charging a surcharge which applies to existing custorers of other corporate

The applicant refers to and repeats the Particulars to

Further and alternatively the corporate respondents

in and between June and@ October 1976 conspired together to make an arrangement or enter into an understanding whereby as from October 1976 or thereabouts each of them would preserve to the others their existing customers by charging a surcharge for supplies to eyisting customers of other

The applicant refers to ard rereats the Particulars to

Further and alternatively on or about 6 September 1976 alternatively in and between June and October 1976 the corporate respondents and each of them made an arrangement or ertered into an understanding whereby as from October 1976 or thereabovts none of them would seek to supply liquid glucose to existina customers of the others at prices below

those cffered by the existing supplier or suppliers.

The applicants refers to and repeats the Particulars to

Further and alternatively the corporate respondents zn and between June and October 1976 conspired together to mate an arrangement or enter into an understanding whereby age from October 1976 or thereabouts none of them would seek

to supply liquid glucose to the existing customers of the others at prices below those offered by the existing

The applicant refers to and repeats the Particulars to

paragraph 13. *21 The sixth and seventhnemed respondents and each of

each of the second to fifthnamed respondentsto contravene section 45(2)(a) of the Act as it existed prior to 1 July 1977 by making the arrangment or entering anto the

The applicant refers to and repeats the Particulars to

*23. The sixth and seventhnamed respondents and each of them -

each of the second to fifth named resenondents to contravene

_ - oo ons

Section 45(2)(a) of the Act ag 1t existed prior tol July 1977 by making the arrangement or entering unto the under-

The applicant refers to and repeats the Particulars to

*25. Tne e1lxth and seventh named respondents and each of them - -

each of the second to fifth named respondents to contravene

Section 45(2)(a) of the Act as it existed prior to 1 July 1977 by making the arrangement or entering into the under-

The applicant refers to and repeats the Particulars to

The errangenents and understandings referred to in paragraphs 12, 14, 16 and 18 hereof were, and each of them was, in restraint or commerce within the meaning of Section

As from October 1976 or thereabouts until 30 June 1977 or thereabouts the ccrporate respondents and each of ther gave effect to the arrangements or understandinas

referred to in paragraphs 12, 14, 16 and 18 hereof.

The corporate respondents and each of them abided by the said arrangements and understandings and complied with and

On and after 1 July 1977 the corporate respondents and each of them agave effect to the arrangements and

understandings referred to tn paragraphs 12, 14, 16 and 18.

The corporate respondents and each of them abided by the sald arrangements and understandings and complied with and

The making of the arrangerent and the entry into of the understandings referred to in paragraphs 12, 14, 16 and 18 hereof constituted a contravention of Section 45(2)(a) of the Act as 1t existed prior to 1 July 1977 in that the salc arrangements and understandings were, and each of them

The giving effect te of the arrangements and under- standings referred to in paragraphs 12, 14, 16 and 18 hereof prior to l July 1977 constituted a contravention of Section

45(2)(b) of the Act as it existed prior to 1 July 1977.

The acts or conduct described@ in paragraphs 13, 15, 17 and 19 hereof constituted conspiracies to contravene Section 45(2)(a) of the Act as it existed prior to 1 July 1977 and as such were acts or conducts referred to in

Paragraph 76(f) of the Act as it existed prior to that

*35 Tne actual conduct described in paragraphs 21, 23,

25 and 27 hereof constituted acts or conduct referred to

an: (a) paragraph 76(¢c); and (bd) paraaraph 76(é),

respectively of the Act as 1t exrsted prior to 1 July 1977.

The arrangements and understandings referred to in paragraphs 12, 14, 16 and 18 hereof and each of them were made or arrived at between persons who were and are competitive with each other and the provisions of the arrangements and understandings referred to therein had an@ "have the purpose of preventing, restricting or limiting: (a) the supply of liguid glucose to particular persons, (b) the supply of liquid glucose to particular persons in particular circumstances, and (c) the supply of liquid glucose to particular persons

In giving effect to the said provisions referred to in paragraph 36 hereof on and after 1 July 1977 the corporate respondent contravened Section 45(2)(b)(1) of the Act as 1t existed after that date.

The provisions referred to in paragrapn 36 hereof have the purpose or have or are likely to have the effect of fixing, controlling or maintaining or providing for the faxing, controlling or maintaining of the price for liquid gluccse supplied or to be supplied by the corporate respondents who at all material times are or were in

In giving effect to the suid provisions referred to in paragrapn 36 hereof on and after 1 July 1977 the corporate respondents contravened Section 45(2)(b)(a1) of

*42. The eighth respondent was knowingly concerned in or party to the contraventions by the second respondent of section 45(2)(b) of the Act as it existed prior tol July 19776 by giving effect to the arrangements and

The eighth respondent communicated witn representatives of the first third fourth and fifthnamed respondents in relation to the prices at which liquid glucose was supplied,

each of the first, third, fourth and f£1ftnameeé respondents to contravene section 45(2)(b) of the Act as it existed prior to l July 1977 by giving effect to th arrangements

and understandings referred to in paragraph 29 hercof.

The applicant refers to and repeats the Particulars to

*44, The eighth respondent was knowingly concerned in or party to the contravention by the eccond respondent cf section 45(2)(b) of the Act ae it existed after 1 July 1977 by giving effect to the arrangements and understandings

After 1 July 1977 the eighth respondent communicated with representatives of the first, third, fourth and fifthnamed respondents in relation to the prices at which liquid

At a glance

Court

Decision date

Before

Source

Judgment (219 paragraphs)