Subsequently certain defendants signed terms of settlement. The orders and undertakings proposed by these terms of settlement involved the cancellation of subscriptions to a price guide known as Thomson's Liquor Guide. The guide was published by Thomson Publications (Australia) Pty. Ltd. (Thomson) which, in February 1978, sought leave to be added as a party. Thomson was added on terms that it might be heard and call evidence as to whether the orders and undertakings sought in pursuance of the proposed terms of settlement could or ought to be made and accepted. Thomson alleged the terms of settlement were very detrimental to the business it conducted in publishing the guide.

The proceedings were brought by the plaintiff under the provisions of ss. 76, 77 and 80 of the Trade Practices Act 1974 (the Act) and a contravention of s. 45 of the Act was alleged. The Trade Practices Act was amended by Act No. 81 of 1977 (the amending Act) which came into operation on 1st July, 1977. The amending Act made significant amendments to the Act including the repeal of s. 45 and the substitution of another section.

It was argued on behalf of Thomson that the injunctive relief sought was no longer available or should not otherwise be granted.

Held: (1) Section 8 (e) of the Acts Interpretation Act ensures that legal proceedings may still be continued in respect of any right which is accrued and in respect of any corresponding liability. The plaintiff had such a right before the introduction of the amending Act and that right has been preserved by s. 8 (c) of the Acts Interpretation Act.

(2) There are no provisions in the amending Act which would prevent the application of s. 8 of the Acts Interpretation Act.

(3) Nothing stands in the way of the court making the orders sought and accepting the undertakings proffered if it thinks they are appropriate.

(4) It is not the function of the court to impede a settlement between parties legally represented and presumably well able to understand and evaluate the desirability of agreeing to a settlement. Nor is it the function of a court to refuse to give effect to terms of settlement by refusing to make orders or to accept undertakings where those orders or undertakings are within the court's jurisdiction to make and accept and are otherwise unobjectionable.

(5) The effect on Thomson of the court making the orders and accepting the undertakings in accordance with the terms of the settlement is not such as to cause the court to refuse to make orders and accept undertakings it thinks appropriate even though the effect of the settlement on Thomson's business might be serious. The terms of settlement presumably would still bind the parties whether or not the court made orders and accepted undertakings.

Tradestock Pty. Ltd. v. T.N.T. (Management) Pty. Ltd. (No.2) [1978] FCA 1; (1978), 32 FLR 420; 17 ALR 257, referred to.

Sydney, 1977, June 22; July 25; September 26; November 4; December 5, 6; 1978, April 3, 4, 24; June 8. 8:6:1978

The Trade Practices Commission commenced proceedings, alleging a breach of s. 45 of the Trade Practices Act 1974, against 109 defendants. The Trade Practices Commission and five defendants entered into terms of settlement and the parties asked the court to make the appropriate orders and accept the appropriate undertakings. The terms of settlement provided, inter alia, that the defendants would cancel their subscriptions to a price guide known as Thomson's Liquor Guide. The publishers of the guide had earlier been added as a defendant and now sought to be heard on whether the proposed orders and undertakings can or ought to be made and accepted.

C. S. C. Sheller Q.C. and P. S. Hastings, for the plaintiff.

J. S. Lockhart Q.C. and W. M. Gummow, for Thomson Publications (Australia) Pty. Ltd.

J. M. Stowe, for the one hundred and fourth defendant.

Solicitor for the plaintiff: A. R. Neaves (Commonwealth Crown Solicitor).

Solicitors for Thomson Publications (Australia) Pty. Ltd.: Allen, Allen & Hemsley.

Solicitors for seventy-four defendants: Bartier, Perry & Purcell.

Solicitors for the eleventh defendant: Arthur T. George & Co.

Solicitors for the one hundred and fourth defendant: Clayton Utz & Co.

Solicitors for four defendants: Shaw, Giugni & Gwynne.

Solicitors for the third defendant: Freehill, Hollingdale & Page.

Solicitors for fourteen defendants: Smithers, Warren & Tobias.

The following judgement was delivered.

FRANKI J. In February 1978 I ordered that Thomson Publications (Australia)

Pty. Ltd. ("Thomson") be added on terms that it may be heard and call evidence as to whether the orders and undertakings sought in pursuance of proposed terms of settlement between the plaintiff and the sixteenth, seventeenth, eighteenth, nineteenth and one hundred and fourth defendants can or ought to be made and accepted. Thomson alleged the terms of settlement were very detrimental to the business it conducted in publishing Thomson's Liquor Guide, a publication which listed suggested retail prices for a very extensive range of alcoholic drinks. (at p236)

2. The terms of settlement which had been reached with the sixteenth, seventeenth, eighteenth, nineteenth and one hundred and fourth defendants and which the court was asked to implement by making the appropriate orders and accepting the appropriate undertakings were, so far as is relevant, in similar terms. The terms of settlement in the case of the sixteenth defendant were:

"The sixteenth Defendant, Cadea (No. 5) Pty. Ltd., HEREBY

CONSENTS to give an undertaking to this Honourable Court in the

following terms: 'Cadea (No. 5) Pty. Ltd. . . . hereby undertakes to

the court that it will promptly: (a) notify the A.H.A. in writing that

the sixteenth defendant, its servants and agents, do not wish to

receive any further A.H.A. circulars, price lists or guides

containing prices or recommended prices for liquor and request the

A.H.A. in writing not to send any further such circulars, price lists

or guides to the sixteenth defendant, its servants or agents; and

(b) notify the publishers of Thomson's Liquor Guide in writing

that the sixteenth defendant, its servants and agents, do not wish

to receive any further issues of Thomson's Liquor Guide and

request the publishers of Thomson's Liquor Guide in writing not to

send any further issues of Thomson's Liquor Guide to the sixteenth defendant, its servants, or agents.'

AND HEREBY FURTHER CONSENTS to the making of an order by this Honourable Court in the following terms: THIS COURT DOTH BY CONSENT ORDER that the sixteenth defendant, by itself, its servants and agents, be restrained from: (a) formulating, approving or recommending prices for liquor as being the prices at which liquor is recommended to be sold to the public from licensed hotel premises or being a party to the formulation, approval or recommendation of such prices; (b) circulating prices for liquor as being the prices at which liquor is recommended to be sold to the public from licensed hotel premises or being a party to the circulation of such prices; (c) receiving price lists or guides containing prices or recommended prices for liquor (other than price lists or guides received directly from a supplier of liquor containing prices or recommended prices in respect only of liquor supplied by that supplier), or acting on such price lists or guides; (d) engaging in conduct of a like kind to, or conduct to the like effect of, the conduct described in pars. (a), (b) or (c) above, or being a party to such conduct.

PROVIDED THAT in the event that the sixteenth defendant receives an unsolicited price list or guide falling within paragraph (c) above, the receipt of such price list or guide shall not be a breach of this injunction provided that the sixteenth defendant: (i) forthwith notifies the Trade Practices Commission in writing of the receipt of the price list or guide; and (ii) takes all reasonable steps to prevent the receipt of further price lists or guides from the same source.

AND THIS COURT DOTH BY CONSENT FURTHER ORDER that the sixteenth defendant pay to the plaintiff the plaintiff's costs of these proceedings as assessed and agreed in the sum of $220." (at p237)

3. The proceedings, which were commenced on 5th December, 1975, were brought by the Trade Practices Commission as plaintiff under the provisions of ss. 76, 77 and 80 of the Trade Practices Act 1974 ("the Act") and a contravention of s. 45 of the Act was alleged. The Trade Practices Act was amended by Act No. 81 of 1977 ("the amending Act") which came into operation on 1st July, 1977. The amending Act made significant amendments to the Act including the repeal of s. 45 and the substitution of another section. The general nature of the proceedings before me was set out in my reasons for judgment delivered on 16th February, 1978, when I ordered that Thomson be added as a party (Re Trade Practices Commission v. Milreis Pty. Ltd.; Application by Thomson Publications (Australia) Pty. Ltd. (1978) 18 ALR 17 ). (at p237)

4. I have now to consider whether or not, by the consent and at the request of the parties to the settlements, I should make the orders sought and accept the undertakings to give effect to the terms of the settlements between the plaintiff and the sixteenth, seventeenth, eighteenth, nineteenth and one hundred and fourth defendants. (at p238)

5. After I had ruled on the admissibility of certain evidence, the matter proceeded substantially upon the basis that the evidence that had been given to support the application of Thomson to be added as a party should be deemed to have been given in the current proceedings. Some further evidence was given in particular by Mr. Wing, managing director of Thomson, and he was cross-examined in some detail. (at p238)

6. Counsel for Thomson submitted that the court should not make the orders sought or accept the undertakings offered on the following grounds: (1) There is now no power to grant injunctive relief in respect of any breach of s. 45 of the Act taking place before that section was repealed as from 1st July, 1977, and a different section substituted because - (a) there was no relevant right accrued within s. 8 (c) of the Acts Interpretation Act 1901 and therefore there were no proceedings which could be preserved by s. 8 (e) of the Acts Interpretation Act, or (b) s. 8 (c) and (e) of the Acts Interpretation Act did not apply because a contrary intention was to be found in the amending Act. (2) Section 80 does not permit the court to grant an injunction in respect of any acts no longer proscribed by the law. (3) The pleadings did not allege a breach of s. 45 as it is in the Act as amended. (4) The court should not grant an injunction even by consent unless the various relevant matters referred to in s. 80 are established either by evidence or admissions. (at p238)

7. Counsel for the plaintiff disputed these contentions and submitted that there was no reason why the court should not give effect to the settlements of the parties who had signed the terms of settlement. (at p238)

8. Section 8 of the Acts Interpretation Act so far as is relevant, provides:

"8. Where an Act repeals in the whole or in part a former Act,

then unless the contrary intention appears the repeal shall not -

. . .

(c) affect any right privilege obligation or liability acquired accrued

or incurred under any Act so repealed; or

. . .

(e) affect any investigation legal proceeding or remedy in respect

of any such right privilege obligation liability penalty forfeiture or

punishment as aforesaid;

and any such investigation legal proceeding or remedy may be

instituted continued or enforced and any such penalty forfeiture or

punishment may be imposed, as if the repealing Act had not been

passed." (at p238)

9. The writ and statement of claim were filed on 5th December, 1975, so that at the date of the repeal of s. 45, if the plaintiff could establish its case, including the relevant conduct of the defendants, subject to the discretion of the court, it could obtain a penalty on behalf of the Commonwealth under ss. 76 and 77, and a suitable injunction under s. 80 and costs. The service of the writ and statement of claim on the defendants was an assertion of that right. Section 8 (e) ensures that legal proceedings may still be continued in respect of any right which is accrued and in respect of any corresponding liability. I am of the opinion that the plaintiff had such a right before the introduction of the amending Act and that that right has been preserved by the provisions of s. 8 (c) of the Acts Interpretation Act. In my opinion this is in accord with Director of Public Works v. Ho Po Sang (1961) AC 901 , Free Lanka Insurance Co. Ltd. v. Ranasinghe (1964) AC 541, at p 552 , Mekol Pty. Ltd. v. Baulkham Hills Shire Council (1971) 2 NSWLR 54, at pp 58-59 , Robertson v. City of Nunawading [1973] VicRp 81; (1973) VR 819, at pp 825-826 and Walton v. Baffsky (1975) 2 NSWLR 565, at pp 576-577 . (at p239)

10. I pass now to consider whether there is any contrary intention in the amending Act which would prevent the application of s. 8 of the Acts Interpretation Act in whole or in part. (at p239)

11. Counsel for Thomson referred to a number of sections of the amending Act in support of his argument. I do not propose to set out those sections in full but I will refer briefly to them. (at p239)

12. Section 25 of the amending Act repealed s. 45 of the Act and replaced it with a new section. (at p239)

13. Section 8 (2), (3) and (4) of the amending Act made certain provisions to deal with the position which arose because the amending Act provided that the Trade Practices Commission previously existing should cease to exist and made provision for the establishment of a new Trade Practices Commission. (at p239)

14. Section 8 (3) and (4) provides: "8. (3) Where, immediately before the commencement of this section, the Commission established by the Principal Act was a party to or intervener in a proceeding in a court, the Trade Practices Commission established by the Principal Act as amended by this Act shall be deemed to be substituted for the first-mentioned Commission as a party to or intervener in that proceeding. (4) The power of the Trade Practices Commission established by the Principal Act as amended by this Act to institute any proceeding in the Court extends to the institution of a proceeding in respect of conduct engaged in before the commencement of this Act." Section 8 (3) has the effect of substituting the new Trade Practices Commission for the Trade Practices Commission which commenced the proceedings before me. In my opinion the section proceeds upon the basis that existing proceedings will continue after the amending Act came into force and does not provide any indication of a contrary intention that s. 8 of the Acts Interpretation Act should not apply. Section 8 (4) of the amending Act also deals specifically with proceedings in respect of conduct engaged in before the commencement of the amending Act and appears to rely on the operation of s. 8 of the Act Interpretation Act. (at p240)

15. Section 40 of the amending Act amends s. 70 of the Act but provides that the amendment shall apply only in relation to contracts made after the amending Act commenced. This does no more than ensure that the amending Act had no retrospective operation with regard to s. 70 of the Act. (at p240)

16. Section 47 (2) of the amending Act provides that amendments made by s. 47 (1) to the penalties for offences against Pt V of the Act should apply in relation to any imposition of penalties after the commencement of the amending Act. This presupposes that liabilities incurred in respect of a breach of the Act will not be terminated by the introduction of the amending Act. In my opinion therefore this section assumes the operation of s. 8 and indicates not a contrary intention, but rather an intention that s. 8 should apply. (at p240)

17. Sections 52 (2) and 82 of the amending Act: s. 52 (2) deals with contracts made before 1st February, 1975, and s. 52 (2) provides, inter alia, that the court may in certain circumstances vary such a contract which was unenforceable in whole or in part prior to the commencement of the amending Act by reason of s. 45 of the Act. Section 82 deals with severability. These sections in my opinion are not inconsistent with the operation of s. 8 of the Acts Interpretation Act and they do not indicate any intention that that section or any part of it should not apply. (at p240)

18. Section 54 (2) of the amending Act deals with problems in relation to authorizations arising from the abolition of the previous Trade Practices Commission and the establishment of a new Trade Practices Commission. This section deals with matters of a different nature to those involved in the questions I am considering and does not indicate any intention that s. 8 should not apply, at least so far as is relevant in the case before me. (at p240)

19. Section 62 (2) of the amending Act deals with the clearance of mergers and in effect provides that a notice, given under s. 94 of the Act stating that the then existing Trade Practices Commission considered that a proposed acquisition of shares in the capital, or of assets, of a body corporate would not be likely to have the effect of substantially lessening competition in a market for goods or services, should have the effect of excluding the operation of ss. 46 and 50 of the Act, as amended, to or in relation to that acquisition. The result of this is that a notice given under a section of the Act has an effect under sections substituted by the amending Act. This section does not indicate any intention that s. 8 should not apply. (at p240)

20. I see nothing in the facts to show that Thomson's submissions are assisted by the decisions in G. F. Heublein and Bro. Inc. v. Continental Liqueurs Pty. Ltd. [1962] HCA 66; (1962) 109 CLR 153 or Farbenfabriken Bayer A.G. v. Bayer Pharma Pty. Ltd. [1965] HCA 24; (1965) 113 CLR 520 . I am satisfied that the plaintiff's action survived the introduction of the amending Act and so I reject the first submission of Thomson. (at p241)

21. This view is in accord with the judgment of Smithers J. in Tradestock Pty. Ltd. v. T.N.T. (Management) Pty. Ltd. (No. 2) [1978] FCA 1; (1978) 32 FLR 420 . In that case his Honour treated proceedings which had been commenced under s. 80 of the Act for an injunction before the amending Act came into force as continuing after that date and gave leave to the plaintiff to amend its statement of claim. His Honour proceeded on the basis that the relevant conduct was that which was proscribed by the Act as amended at the date when the court is considering the making of an injunction. (at p241)

22. I consider that the second submission of Thomson that s. 80 does not permit the court to grant an injunction in respect of any acts no longer proscribed by the law is correct and is in accordance with Application des Gaz S.A. v. Falks Veritas Ltd. (1974) 1 Ch 381 and Tradestock Pty. Ltd. v. T.N.T. (Management) Pty. Ltd. (No. 2) [1978] FCA 1; (1978) 32 FLR 420 . However I do not consider this is decisive of the questions which I have to determine. (at p241)

23. The third submission of Thomson deals with the pleadings. The proceedings were commenced by writ and statement of claim filed in the Industrial Court on 5th December, 1975. Under the provisions of reg. 78L of the Conciliation and Arbitration Regulations proceedings under s. 77 of the Act, were, so far as was practicable, to be instituted and conducted in like manner as an action by writ of summons is instituted and conducted in the High Court and under reg. 78P a claim for an injunction under s. 80 might be included as a claim. If no pecuniary penalty was sought an alternative procedure by way of order to show cause was provided under reg. 78N. (at p241)

24. Thomson's fourth submission was that even where an injunction was sought by consent, the court had to be satisfied of the various relevant matters either by evidence or admissions. The terms of settlement which have been entered into are not qualified in any way, for example that they are not upon the basis of being without admission of liability. I consider that all necessary admissions are to be implied from these terms of settlement. (at p241)

25. I consider therefore that nothing stands in the way of the court making the orders sought and accepting the undertakings proffered if it thinks they are appropriate, and the question arises what examination should the court make of a request to make orders and accept undertakings by consent. (at p241)

26. It seems clear that the court has the power to refuse to make an injunction or refuse to accept undertakings where the injunction sought or the undertakings proffered are insufficiently precise. See Wilson & Whitworth Ltd. v. Express & Independent Newspapers Ltd. (1969) 1 WLR 197 . Apart from this aspect I have not been directed to, nor have I found, any very helpful authorities upon the question of what principles should guide me. I have not overlooked E. F. Phillips & Sons Ltd. v. Clarke (1970) 1 Ch 322 , Noel v. Becker (1971) 1 WLR 355 and Roberts v. Gippsland Agricultural and Earth Moving Contracting Pty. Ltd. [1956] VicLawRp 86; (1956) VLR 555 . (at p242)

27. I consider that when the court is asked by consent of the parties to a settlement to implement terms of that settlement it should not raise unnecessary difficulties about pleadings and, for example, require an amendment, provided that the court is satisfied that any consent orders it makes, or consent undertakings it accepts, are not inappropriate and are within jurisdiction. Section 80, both before and after amendment, allowed the court to grant an injunction restraining a person from engaging in conduct which constitutes or would constitute a contravention of a provision of Pt IV. The amending Act introduced provisions which, inter alia, gave the court power to grant an injunction restraining a person from engaging in conduct of a particular kind, being for example conduct in contravention of a provision of Pt IV, if it is satisfied that the person has engaged in conduct of that kind whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind. (at p242)

28. The pleadings alleged that the corporation defendants and each of them and other retailers of liquor from licensed hotel premises in New South Wales had been and remained parties to an arrangement whereby they recommended to each other from time to time prices at which liquor may be sold to the public from licensed hotel premises operated by or on behalf of the parties to the said arrangement. It was also alleged that it was part of the arrangement, inter alia, that the prices so recommended be formulated or approved from time to time by persons acting in an executive capacity in connection with the affairs of the Australian Hotels Association, that such prices so formulated or approved be circulated to each of the parties to the said arrangement as being prices at which liquor was recommended by the Australian Hotels Association to be sold to the public from licensed hotel premises in New South Wales and that this was in restraint of trade or commerce. (at p242)

29. It was also further or alternatively alleged that it was part of the said arrangement that liquor sold to the public from licensed hotel premises operated by or on behalf of the parties to the said arrangement would be at the prices recommended, or at those prices in the absence of special circumstances to the contrary, or that the recommended prices were to be taken into account as a material fact by the parties to the arrangement in determining the prices at which liquor would be sold to the public from licensed hotel premises operated by them or on their behalf. It was alleged that each of the alleged arrangements were in restraint of trade or commerce. (at p243)

30. Similar allegations were made by pleading an understanding instead of an arrangement. (at p243)

31. At the hearing the plaintiff relied substantially upon s.45 (2) (b) (ii) of the Act as amended, which provides, so far as is relevant, that a corporation shall not give effect to a provision of an arrangement or understanding whether made or arrived at before or after the commencement of the amending Act if that provision has the purpose, or has or is likely to have the effect, of substantially lessening competition. Thomson argued that the essential feature was that the provision of the arrangement or understanding had the purpose, or had or was likely to have the effect, of substantially lessening competition and that this was not alleged in the pleadings. (at p243)

32. I do not think it is the function of the court to impede a settlement between parties legally represented and presumably well able to understand and evaluate the desirability of agreeing to a settlement, nor do I think it the function of the court to refuse to give effect to terms of settlement by refusing to make orders or to accept undertakings where those orders or undertakings are within the court's jurisdiction to make and accept and are otherwise unobjectionable. As I have said I consider that I am entitled to treat the terms of settlement, not being subject to any restriction, as supplying any necessary admissions as between the parties to the settlement. (at p243)

33. An injunction granted pursuant to s. 80 must surely be within jurisdiction if it prohibits certain specific acts and not merely an infringement of a section of the amended Act or conduct couched in the words of a section of that Act, provided the acts prohibited are acts which may reasonably be part of the conduct proscribed in s. 80. (at p243)

34. It is appropriate to note that Bowen C.J. in this matter on 25th July, 1977, prior to Thomson becoming a party, granted an injunction by consent in relation to the one hundred and first defendant although this was done by his Honour without the advantage of any detailed argument. The injunctions which his Honour granted were in the same form as those in pars. (a), (b) and (c) and the proviso to the orders sought now pursuant to the terms of settlement. The fourth order sought, in par. (d) of the terms of settlement, namely, that prohibiting the relevant defendant from engaging in conduct of a like kind to, or conduct with a like effect of, the conduct described in pars. (a), (b) or (c) or being a party to such conduct is, in my opinion, too uncertain for the court to make. (at p243)

35. The undertakings which the court is asked to accept were not the subject of the settlement given effect to by Bowen C.J. in relation to the one hundred and first defendant, but they are not subject to any objection on the grounds of uncertainty. Whether I should accept these undertakings and, to some extent, whether I should make order (c) depends upon what regard, if any, I should pay to the position of Thomson. (at p244)

36. Certain evidence given in relation to the method by which the prices recommended in Thomson's Liquor Guide were arrived at was treated as confidential and was the subject of orders under ss. 17 and 50 of the Federal Court of Australia Act 1976. Nothing in this confidential evidence need be dealt with in this judgment because ultimately, in my view, it formed no more than background material. (at p244)

37. I consider that the effect on Thomson of the court making the orders (a), (b) and (c) and accepting the undertakings in accordance with the terms of settlement is not such as to cause me to refuse to make orders and accept undertakings I otherwise think appropriate even though the effect of the settlement on Thomson's business may be serious. However the terms of the settlement presumably would still bind the parties whether or not the court makes orders and accepts undertakings. No argument was presented that the terms of the undertakings in the settlements might be part of an exclusionary provision within s. 4D of the Act as amended. (at p244)

38. The proceedings are by the Trade Practices Commission under ss. 77 and 80, and under s. 77 the recovery of a penalty referred to in s. 76 is sought on behalf of the Commonwealth. In such circumstances I consider the court could not be expected to refuse to implement terms of settlement on the ground that those terms would injure the business of some third person not a party to the settlement unless the court was very firmly of the opinion that it was appropriate so to do. I do not propose to express any view on what, if any, circumstances might cause the court to refuse to make appropriate orders and accept appropriate undertakings within jurisdiction which were to give effect to terms of settlement but I am satisfied that in this case it is appropriate to make injunctions (a), (b) and (c) as sought together with the proviso thereto, to accept the undertakings proffered and to make the orders for the payment of the agreed costs. (at p244)