(1993) 118 ALR 280

(1993) 45 FCR 466

Trade Practices Act Mergers And Acquisitions - meaning of "a corporation shall not acquire ... indirectly" in s. 50 - relationship to s. 4(4) - whether an acquisition through a subsidiary company is an indirect acquisition by a holding company - discussion of the conflict between views expressed in Australia Meat Holdings Pty Limited v. Trade Practices Commission and Trade Practices Commission v. Australian Iron & Steel Pty Ltd - whether s. 50 should be given a broad construction - whether the concept of indirect acquisition reflects learning on antitrust law in the United States or competition law in the European Economic Community - discussion of cases relevant to the question whether a foreign company can carry on business in Australia by the agency or instrumentality of an Australian subsidiary - whether an international business of acquisition of other businesses was being carried on - whether if such a business was being carried on the acquisition of an Australian corporation's assets in the course of it would be "an acquisition in the ordinary course of business" within s. 4(4)(b) - whether s. 4(4)(b) reflects United States learning on s. 7 of the Clayton Act.

Practice And Procedure - leave to serve process outside the jurisdiction - whether a prima facie case was shown within Order 8 rule 2(2)(c) - whether it was open to a foreign corporation to challenge a grant of leave to serve process outside the jurisdiction without filing a conditional or any appearance - discussion of English practice and practice under the Service and Execution of Process Act in respect of moving to set aside service without entering an appearance - meaning of a prima facie case within Order 8 rule 2(2)(c) - whether a prima facie case has to be shown in respect of each of several causes of action alleged - discussion of conflict in this regard between State of Western Australia v. Vetter Trittler Pty Ltd (In liq) (Receiver and Manager Appointed) and Tycoon Holdings Ltd v. Trencor Jetco Inc - whether it is open to a foreign corporation challenging the jurisdiction to raise pleading points as distinct from issues going to whether a prima facie case is shown.

Trade Practices Act 1974, ss. 4(4), 50

Federal Court Rules, Order 8 rules 1 and 2, Order 9 rules 2 and 7

Australia Meat Holdings Pty Limited v. Trade Practices Commission (1989) 11 ATPR 50,082

Trade Practices Commission v. Australian Iron & Steel Pty Ltd [1990] FCA 23; (1990) 22 FCR 305

Devenish v. Jewel Food Stores Pty Limited [1991] HCA 7; (1991) 172 CLR 32

Waugh v. Kippen [1986] HCA 12; (1986) 160 CLR 156

Beckwith v. The Queen [1976] HCA 55; (1976) 135 CLR 569

British American Tobacco Company Ltd v. Commission of the European Communities (1987) ECR 4,487; (1988) 4 CMLR 24

Revlon Inc. v. Cripps & Lee Ltd. (1980) FSR 85

Industrial Equity Limited v. Blackburn [1977] HCA 59; (1977) 137 CLR 567

Adams v. Cape Industries Plc. (1990) 1 Ch. 433

J.H. Rayner (Mincing Lane) Ltd v. Department of Trade and Industry (1989) 1 Ch. 72

Bulova Watch Company, Inc. v. K. Hattori & Co., Ltd. 508 F. Supp. 1322 (1981)

Smith, Stone and Knight, Ltd. v. Lord Mayor, Aldermen and Citizens of the City of Birmingham (1939) 4 All ER 116

Taylor v. White [1964] HCA 11; (1964) 110 CLR 129

Diamond v. Sutton (1866) LR 1 Ex 130

Ex parte Walker; re Caldwell's Wines Ltd [1931] NSWStRp 32; (1931) 31 SR(NSW) 494

W.A. Dewhurst & Co. Pty. Ltd. v. Cawrse [1960] VicRp 44; (1960) VR 278

Vitkovice Horni a Hutni Tezirstvo v. Korner (1951) AC 869

Merpro Montassa Limited v. Conoco Specialty Products Inc [1991] FCA 70; (1991) 28 FCR 387

State of Western Australia v. Vetter Trittler Pty Ltd (In liq) (Receiver and Manager Appointed) (1991) 30 FCR 102

Tycoon Holdings Ltd v. Trencor Jetco Inc [1992] FCA 25; (1992) 34 FCR 31

WSGAL Pty Limited v. Trade Practices Commission [1992] FCA 510; (1992) 39 FCR 472

Hartwell Trent (Australia) Pty. Ltd. v. Tefal Societe Anonyme [1968] VicRp 1; (1968) VR 3

Mr C.P. Comans and

Mr G. Griffin

Solicitors for the Applicant: Australian Government

Solicitor

Counsel for the First and Third Mr J.C. Campbell QC Respondents:

Solicitors for the First and Messrs Allen Allen & Third Respondents: Hemsley

1. The motions of the Gillette Company seeking orders

setting aside service of process upon it outside the

jurisdiction and other relief be dismissed.

2. Gillette pay the costs of its motions of the Trade

Practices Commission.

AND THE COURT NOTES that the Trade Practices Commission

proposes to amend its amended statement of claim to plead

expressly that the third respondent had knowledge of every

essential element of the alleged contravention of s. 50.

AND THE COURT ORDERS that the motion of the third respondent

to strike out the amended statement of claim be dismissed and

that the third respondent's costs of the motion be its costs

in the action.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BURCHETT J In this matter, an application was filed on 27 August 1992, by which relief was sought in respect of an alleged contravention of s. 50 of the Trade Practices Act 1974. I gave leave ex parte, pursuant to Order 8 rule 2 of the Federal Court Rules, to enable the originating process to be served outside the Commonwealth upon the Gillette Company ("Gillette"), which is a United States corporation. Subsequently, the statement of claim was amended more than once, and on 30 October 1992 I granted leave, again upon an ex parte application, to re-serve the process outside the Commonwealth. Without entering an appearance, Gillette on 13 January 1993 filed a notice of motion seeking a discharge of the order giving leave to re-serve the process, a declaration that the process was not duly served, and an order setting aside the service of the application and the amended statement of claim. A similar notice of motion had previously been filed in relation to the process originally served. Separately, the third respondent filed a notice of motion to strike out the amended statement of claim.

2. Gillette has at no stage filed an appearance, whether conditional or unconditional. The first question which was debated before me was whether, under the rules, Gillette was entitled to proceed to the hearing of its motion without filing an appearance. On that issue, the Trade Practices Commission drew attention to the terms of Order 9 rule 2(1):

"Subject to these Rules a respondent shall enter an

appearance before the date appointed for a directions

hearing and before filing any document."

There had been a number of directions hearings. Gillette, on the other hand, relied upon the terms of Order 9 rule 7, which provides:

"7(1) The Court may, on application made by a respondent to

any originating process on notice of motion filed within the

time fixed by sub-rule (2), by order -

(a) set aside the originating process;

(b) set aside the service of the originating process on the

respondent;

(c) declare that the originating process has not been duly

served on the respondent;

(d) discharge any order giving leave to serve the

originating process outside Australia or confirming service

of the originating process outside Australia.

7(2) Notice of a motion under sub-rule (1) may be filed by

a respondent before he enters an appearance or within

fourteen days after the date of entry of a conditional

appearance by him."

Attention should also be drawn to Order 19 rule 2(1):

"Subject to sub-rule (2), a person shall not move the Court

or a Judge for any order unless before moving he has filed

notice of the motion and has served the notice on each

interested party who has an address for service in the

proceeding."

3. It will be noticed that Order 9 rule 2(1) is expressed to be "(s)ubject to these Rules". Order 19 rule 2(1) requires that, except in the cases covered by sub-rule (2), a party moving the Court must first file and serve a notice of motion, but it does not require that an appearance shall first be entered. The rule which is specifically concerned with the relationship between the entering of an appearance and the bringing of an application on notice of motion to set aside the service of originating process outside Australia is Order 9 rule 7(2). That rule simply says that the respondent may file the notice of motion "before he enters an appearance". The difficulty is that it does not advert expressly to the question whether an appearance must thereafter be filed before the hearing of the motion. To put it another way, the question is whether the rule merely permits the motion to be filed first and an appearance afterwards, or whether it permits the motion to be filed and heard without the entry of an appearance.

4. In my opinion, the words "before he enters an appearance" are equivalent to "without entering an appearance". The use of the word "before" just reflects the history of the rule and the ordinary contemplation that an appearance will or may, in the normal course, be entered if the objection to the jurisdiction fails. Any other view would, I think, rob the rule of meaning. Why would it be necessary to provide that the motion could be taken out before an appearance is entered if the appearance is in any case required? The priority of filing would not seem to offer any advantage. If it be suggested that the prior filing of the motion would make it plain that the appearance filed afterwards is conditional only, the answer would be that the very same sub-rule provides, as an alternative, that the respondent may enter a conditional appearance.

5. But all doubt seems to me to be removed when the matter is viewed historically. As far back as the last century, it was recognized that a foreigner served with process could either enter a conditional appearance or, without entering an appearance at all, take out a motion to set aside the service. The same procedure came, during this century, to be recognized in Australia in relation to the Service and Execution of Process Act 1901. Its existence provides the background against which the otherwise somewhat uncertain language of Order 9 rule 7(2) is to be understood.

6. At the time the rules of this Court were adopted, the English Supreme Court Practice (the White Book) of 1979, vol. 1, at pp 111-112, contained the following note:

"A conditional appearance or appearance under protest is a

complete appearance to the action for all purposes, subject

only to the right reserved by the defendant to apply to set

aside the writ or the service thereof, on any ground which

he can sustain. A conditional appearance is, although

expressed to be 'conditional,' nevertheless a complete

appearance to the action for all purposes subject only to

the right reserved by the defendant to apply to set aside

the writ or service, and moreover it is a voluntary

appearance and may thus amount to a submission to the

jurisdiction ... . If a party, therefore, desires to avoid

submitting to the jurisdiction, the safer course for him is

not to enter a conditional appearance, but without entering

any appearance to apply to set aside the service or the

writ on the ground that the court has no jurisdiction to

claim or exercise jurisdiction over him."

It will be noted that the Practice uses the expression "apply to set aside the service", which would unambiguously include the argument of the matter before the Court as well as the filing of the notice of motion. This is in accordance with the language of the English rule, Order 12 rule 8(1), as it then stood, which provided:

"A defendant to an action may at any time before entering an

appearance therein, or, if he has entered a conditional

appearance, within fourteen days after entering the

appearance, apply to the Court for an order setting aside

the writ or service of the writ ... ."

7. The early practice in England is exemplified by Diamond v. Sutton (1866) LR 1 Ex 130. There a defendant who had been served out of the jurisdiction, "without appearing to the writ", applied on affidavit to set it aside. The Court of Exchequer (Pollock CB, Martin, Channell and Pigott BB) granted relief. The same procedure seems to have been regarded as appropriate in Jackson v. Spittall (1870) LR 5 CP 542. In Hewitson v. Fabre (1888) 21 QBD 6, where a judgment had actually been entered against the French defendant who had filed no appearance, Wills J (at 9) expressed the opinion that "the defendant may come at any time and ask to have the writ set aside".

8. In Australia, the practice in relation to the Service and Execution of Process Act, which became established as a result of the decision of the full court of the Supreme Court of New South Wales in Ex parte Walker; re Caldwell's Wines Ltd [1931] NSWStRp 32; (1931) 31 SR(NSW) 494, was seen as reflecting the English practice in relation to foreign service. In the case cited, Halse Rogers J, speaking for the court (Street CJ, Davidson and Halse Rogers JJ) said (at 505):

"(I)t is open to a defendant, without appearing, to move to

stay all proceedings. There is no more reason against his

doing so than there was against moving, under the English

practice, before appearance, to set aside the writ and the

service of the writ."

(This passage, I observe, uses "before appearance" as the complete equivalent of "without appearing".) It is made plain by the headnote, and by the argument of Flannery K.C. (at 496) that the defendant had not entered an appearance. That the practice approved in this case accorded with the accepted course of procedure in relation to writs served out of the jurisdiction was recognized by Dixon CJ and Fullagar J in Tallerman and Company Proprietary Limited v. Nathan's Merchandise (Victoria) Proprietary Limited [1957] HCA 10; (1957) 98 CLR 93 at 107, although (at 108) they illustrated that practice only by reference to the alternative course for which it provided of entering a conditional appearance. The same procedure was followed by Dean J in W.A. Dewhurst & Co. Pty. Ltd. v. Cawrse [1960] VicRp 44; (1960) VR 278, where, as is stated at the opening page, the defendant, "without entering an appearance, conditional or otherwise, moved to stay all further proceedings in the action upon the ground that the Court had no jurisdiction".

9. When the terms of Order 9 rule 7(2) are considered in the light of the long established practice in England and Australia, I think it is clear that Gillette was entitled to seek an order setting aside the service of the originating process on it, or otherwise seeking relief under rule 7(1), without entering any appearance.

10. I turn to the substantial issue, whether the service effected out of the jurisdiction of the Court upon Gillette should be set aside, or alternatively confirmed. The rules dealing with this matter are to be found in Orders 8 and 9 of the Rules of Court, which are authorized by s. 59 of the Federal Court of Australia Act 1976, particularly s. 59(2)(g) (and see also s. 59(2)(b)). By Order 8 rule 1, and subject to rule 2, "originating process may be served outside the Commonwealth" in a wide range of cases. But sub-rules (1) and (2) of rule 2 provide:

"2(1) Service outside the Commonwealth of originating

process is not valid under this Order unless -

(a) the service is in accordance with the prior leave of the

Court given under sub-rule (2);

(b) the Court confirms the service under sub-rule (4); or

(c) the person served waives objection by entering an

appearance.

2(2) Where the Court is satisfied of the following matters -

(a) that the proceeding is a proceeding in which the Court

has jurisdiction;

(b) that the proceeding is a proceeding to which rule 1

applies; and

(c) that the applicant has a prima facie case for the relief

which he seeks,

the Court may, by order, grant leave to serve originating

process outside the Commonwealth under this Order."

Order 9 rule 7, which has already been set out, then makes provision for an application such as the present, in a case where a respondent served out of the jurisdiction desires to challenge the grant of leave to serve the originating process outside the Commonwealth.

11. Where paras. (a) and (b) of Order 8 rule 2(2) are satisfied (and I do not understand the contrary to have been argued here), the question on which everything must turn is whether "the applicant has a prima facie case for the relief which he seeks" within para. (c). In Amust Computer Corporation Pty Ltd v. Australia Entre Business Centres Pty Ltd (No. 2) (1987) 9 ATPR 48,945 at 48,949, Jenkinson J drew attention to the use in the paragraph of the expression "a prima facie case", without expressing a firm view as to its effect. In my opinion the requirement of a prima facie case is critically important. Under a rule in somewhat less precise terms, requiring that "it shall be made sufficiently to appear to the court or judge that the case is a proper one for service out of the jurisdiction under this Order", the House of Lords in Vitkovice Horni a Hutni Tezirstvo v. Korner (1951) AC 869 found some difficulty, as Lord Simonds confessed (at 879), in stating "precisely what test must be passed". Their Lordships discussed whether a prima facie case would be sufficient, and Lord Simonds (at 880) appeared to accept the expression "a good arguable case" as appropriate, while Lord Radcliffe (at 883) asked whether "on consideration of all admissible material there remains a strong argument for the opinion that the qualifying conditions are indeed satisfied". Whatever the precise test, there can be no doubt that a judge must bear in mind the considerable consequences of an assertion of jurisdiction in such a case, when deciding whether the test has been satisfied. But the well known discussion in Korner makes it very probable that the adoption of the rule referring to a "prima facie case" followed careful deliberation about the matter, and that test should be faithfully applied. At the same time, I agree with Heerey J in Merpro Montassa Limited v. Conoco Specialty Products Inc [1991] FCA 70; (1991) 28 FCR 387 and French J in State of Western Australia v. Vetter Trittler Pty Ltd (In liq) (Receiver and Manager Appointed) (1991) 30 FCR 102 at 109-110 that para. (c) does not envisage "the kind of scrutiny that would occur in a submission of no case to answer following the closure of an applicant's case at trial". As French J put it, "a prima facie case is made out if, on the material before the court, inferences are open which if translated into findings of fact, would support the relief claimed." This approach follows, I think, from the fact that para. (c) is concerned with "a prima facie case for the relief" sought, and with the grant of "leave to serve originating process", not with the terms of the statement of claim. Having regard to Order 4 rule 1, the originating process must mean, at least primarily, the application; it is not an apt expression to refer to a statement of claim.

12. In Tycoon Holdings Ltd v. Trencor Jetco Inc [1992] FCA 25; (1992) 34 FCR 31 at 36 Wilcox J also expressed agreement with the view of a prima facie case taken in Merpro Montassa Ltd, but his Honour (at 35) suggested that, at least in some circumstances, para. (c) would have to be read as requiring a prima facie case in respect of each cause of action alleged. This may be contrary to State of Western Australia v. Vetter Trittler Pty Ltd, which does not appear to have been cited. There (at 110) a cause of action not supported by a finding of a prima facie case was expressly allowed to be maintained on the basis that "the relief claimed under that head is the same" as relief claimed under another head which was sufficiently evidenced. With respect, I would follow State of Western Australia v. Vetter Trittler Pty Ltd as according better with the language of the rule, except perhaps in the kind of extreme case which Wilcox J instanced.

13. The sense in which a prima facie case has been understood in the authorities I have mentioned also seems to me to be confirmed by some observations of Beaumont J in a full court appeal from an earlier application in the present matter: WSGAL Pty Limited v. Trade Practices Commission [1992] FCA 510; (1992) 39 FCR 472 at 476. Beaumont J said:

"Under O 8, r 2(2)(c), one of the matters an applicant

seeking leave to serve outside the jurisdiction has to

establish is that it has a prima facie case. Such a

preliminary question should not call for a substantial

inquiry. The kind of evidence adduced on a preliminary

inquiry of this kind should be in proportion to the nature

of such an interlocutory issue. ... (T)he purpose is to

determine by way of a mini rather than a mega trial whether

the applicant has a prima facie case."

Morling J (with whom Hill J agreed) also made it clear in the same full court decision (at 474) that "it is open to a party who has obtained an ex parte order for service outside the jurisdiction to tender further evidence on the matters referred to in r 2(2)", that is, at the hearing of an application such as the present. (As to this, see also Hartwell Trent (Australia) Pty. Ltd. v. Tefal Societe Anonyme [1968] VicRp 1; (1968) VR 3.)

14. The Trade Practices Commission did tender a great deal of further evidence at the hearing of Gillette's application. When the matter came to be argued, counsel for Gillette made a statement to the Court as follows:

"Your Honour, when the notice of motion that was put on by

The Gillette Company was first being contemplated, it was

contemplated that there would be challenge to the

jurisdiction of the Court which looked at both the question

of whether there was an adequate articulation (of) any

cause of action against The Gillette Company and also

whether any prima facie case had been made out of any such

cause of action.

Now, the approach which we seek to take is that we would

seek to argue that the statement of claim is just so

deficient that one never gets to the stage of examining

evidence and we do not seek to do so. (Emphasis added.)

After all, any question of is there a prima facie case? has

got to start out with the question, a prima facie case of

what? And what we say is that the statement of claim is so

completely deficient that it does not assert (a) cause of

action and that it is also internally contradictory in a

number of ways."

Counsel for Gillette suggested that this would affect the order of address, as to which I asked, seeking clarification, "Because you are seeking not to deal with the evidence but only with the form of the statement of claim?" to which he replied: "That is right. It also has the practical advantage that your Honour will be spared about six volumes of affidavits."

15. After some further discussion, involving both counsel, I said:

"All right, well, what Mr Campbell says ... is that his only

contention here is that there is not a prima facie case for

relief in this proceeding because no case has been pleaded

in such a form as to enable the Court to determine that

there is a prima facie case for relief. Have I fairly

stated that, Mr Campbell? Is that what you are saying?"

Counsel for Gillette responded in the affirmative. Counsel did, initially, adopt in advance certain submissions which were to be made later on a constitutional point. However, subsequently, all parties agreed that this point should not be dealt with in connection with Gillette's motion.

16. Having regard to the way in which Gillette's case was mounted in argument, no purpose would be served by reciting the detailed matters set out in the affidavits and other documents in evidence. I am quite satisfied that, subject to the questions which counsel did raise, a prima facie case is established for the relief which the Trade Practices Commission seeks. As I have made clear, the contrary was not even argued. Indeed, when counsel for the Trade Practices Commission nevertheless attempted to take me through the evidence of Gillette's own close involvement in quite minute details of its subsidiaries' activities in Australia, as showing it was carrying on business here by them as agents or instruments, Mr Campbell objected, saying the "topic ... is just not before the court. ... I can foreshadow your Honour that I do not intend to make any argument whatever concerning evidence." He also, at another point in the argument, expressly noted that "various remarks concerning evidence" in his written submissions ought to be deleted because he would "not be relying upon" them.

17. At the material times, which were before 21 January 1993 when the "merger amendments" effected by the Trade Practices Legislation Amendment Act 1992 came into force, s. 50 of the Trade Practices Act relevantly provided:

"50.(1) A corporation shall not acquire, directly or

indirectly, any shares in the capital, or any assets, of a

body corporate if -

(a) as a result of the acquisition, the corporation would

be, or be likely to be, in a position to dominate a market

for goods or services; or

(b) in a case where the corporation is in a position to

dominate a market for goods or services -

(i) the body corporate is, or is likely to be, a competitor

of the corporation or of a body corporate that is related to

the corporation; and

(ii) the acquisition would, or would be likely to,

substantially strengthen the power of the corporation to

dominate that market.

. . .

(2) If -

(a) a body corporate that is related to or associated with a

corporation is, or two or more bodies corporate each of which

is related to or associated with the one corporation together

are, in a position to dominate a market of goods or services;

or

(b) a corporation, and a body corporate that is, or two or

more bodies corporate each of which is, related to or

associated with that corporation, together are in a position

to dominate a market for goods or services,

the corporation shall be deemed for the purposes of this

section to be in a position to dominate that market.

. . .

(3) In this section -

(a) a reference to a market for goods or services shall be

construed as a reference to a substantial market for goods or

services in Australia in a State or Territory; and

(b) a reference to dominating a market for goods or services

shall be construed as a reference to dominating such a market

either as a supplier or as an acquirer of goods or services

in that market."

What is a "related" company for the purposes of s. 50 is indicated by s. 4A(5): Trade Practices Commission v. Bowral Brickworks Pty Ltd [1984] FCA 241; (1984) 2 FCR 552.

18. It will be apparent that a central concept in s. 50, upon which much else depends, is the concept of acquisition. This is the subject of definition in s. 4(4) of the Act, which provides:

"In this Act -

(a) a reference to the acquisition of shares in the capital

of a body corporate shall be construed as a reference to an

acquisition, whether alone or jointly with another person, of

any legal or equitable interest in such shares; and

(b) a reference to the acquisition of assets of a body

corporate shall be construed as a reference to an

acquisition, whether alone or jointly with another person, of

any legal or equitable interest in such assets but does not

include a reference to an acquisition by way of charge only

or an acquisition in the ordinary course of business."

By virtue of that provision, the word "acquire" in s. 50 refers to the acquisition of any legal or equitable interest in relevant shares or assets.

19. Counsel for Gillette submitted in the present case that when s. 50 refers to an acquisition of assets it is speaking the language of what he described as black letter property law. However, not only does the section refer to an acquisition of any kind of legal or equitable interest, it refers to such an acquisition made "directly or indirectly". It is not easy to be sure where the legislature intended to draw a boundary described in such general language. In Australia Meat Holdings Pty Limited v. Trade Practices Commission (1989) 11 ATPR 50,082 at 50,094 Davies J said:

"(T)he word 'indirectly' may not inevitably be limited to a

circumstance where the beneficial ownership of property

resides in the acquiring corporation. Section 50 should be

given a wide operation for it is intended to deal with

cases of domination in the market place. The words

'acquire, directly or indirectly' should be read as

encompassing all forms of acquisition and may encompass the

situation where assets are acquired in an indirect way, as

through the interposition of a wholly-owned subsidiary."

Sheppard J (at 50,101) made it clear he thought the precise scope of the section was a matter of some difficulty.

20. But in Trade Practices Commission v. Australian Iron & Steel Pty Ltd [1990] FCA 23; (1990) 22 FCR 305 at 316-318, a decision of Lockhart J, his Honour discussed the meaning of the words "directly or indirectly" in s. 50, commenting:

"I find it a little curious that the words appear in the

subsection at all because I doubt if they add anything to

what would otherwise be the construction of the subsection."

He was of that view because he thought an acquiring corporation must have acquired some legal or beneficial ownership of the relevant property. Referring to the views of Davies J as "dicta", Lockhart J said:

"I do agree that the interposition between the acquiring

corporation and the target body corporate of a wholly owned

subsidiary of the former may fall within s 50, but in my

view only where the subsidiary acts as agent or otherwise

for and on behalf of the corporation as principal.

Otherwise the well established principle (see Macaura v.

Northern Assurance Co Ltd (1925) AC 619) that a holding

company does not own the assets of its subsidiary would be

in conflict with the dicta. As s 50 is a penal provision I

am not satisfied that it should be given a wide operation."

21. The conflict between the propositions stated by Davies J in Australia Meat Holdings and Lockhart J in Australian Iron & Steel leaves the law on the very important question of what is meant by an indirect acquisition in some doubt. That doubt is not lessened by the fact that Lockhart J placed emphasis, in reaching his final conclusion, on the proposition that s. 50 is a penal provision which should therefore not be given a wide operation. For, more recently, Mason CJ in Devenish v. Jewel Food Stores Pty Limited [1991] HCA 7; (1991) 172 CLR 32 at 44 said of another of the prohibitory provisions in Part IV of the Trade Practices Act (s. 45D):

"Moreover, s. 45D(1) falls within Pt IV of the Act, the

general purpose and scope of which have been described by

Deane J as containing 'provisions which proscribe and

regulate agreements and conduct and which are aimed at

procuring and maintaining competition in trade and commerce':

Refrigerated Express Lines (A/asia) Pty. Ltd. v. Australian

Meat and Live-stock Corporation (No. 2) [1980] FCA 38; (1980) 44 FLR 455,

at p 460; [1980] FCA 38; 29 ALR 333, at p 340. The evident purpose and

policy underlying this Part of the Act recommends a broad

construction of its constituent sections. In a similar

context, the United States Supreme Court has stated:

'It has been said, of course, that the antitrust laws,

and Robinson-Patman in particular, are to be

construed liberally, and that the exceptions from

their application are to be construed strictly. ...

Because the (Robinson-Patman) Act is remedial, it is

to be construed broadly to effectuate its purposes':

Abbott Laboratories v. Portland Retail Druggists

Assn., Inc. [1976] USSC 43; (1976) 425 US 1, at pp 11-12.

(See also United States v. McKesson & Robbins (1956) 351

US 305, at p 316; Perkins v. Standard Oil Co. (1969) 395

US 642, at p 647.) Section 45D(1) may similarly be

described as being of remedial legislative character and

accordingly 'should be construed so as to give the fullest

relief which the fair meaning of its language will allow':

Bull v. Attorney-General (N.S.W.) [1913] HCA 60; (1913) 17 CLR 370, at

p 384, per Isaacs J. See also Samuel v. Newbold (1906)

AC 461, at p 467; Wilson v. Moss [1909] HCA 7; (1909) 8 CLR 146, at

p 165; Holmes v. Permanent Trustee Co. of New South Wales

Ltd. [1932] HCA 1; (1932) 47 CLR 113, at p 119; Waugh v. Kippen

[1986] HCA 12; (1986) 160 CLR 156, at p 164. My comments in another

context are equally applicable to this case:

'It is reasonable to impute to Parliament an intention

that the provision, which is a protective provision,

be given "the widest possible scope"': Day & Dent

Constructions Pty. Ltd. v. North Australian

Properties Pty. Ltd. [1982] HCA 20; (1982) 150 CLR 85, at p 108.

This is so even though a person or a body corporate

contravening the section will be liable for pecuniary

penalties of $50,000 and $250,000 respectively (s. 76): cf.

Waugh v. Kippen (1986) 160 CLR, at pp 164-165."

22. The judgment of Mason CJ in Devenish v. Jewel Food Stores Pty Limited was, of course, a dissenting judgment. However, nothing in the majority judgments, which turned (as Brennan J made clear at 47 and Toohey J at 58) on a distinction clearly expressed in the language of s. 45D, demonstrates any disagreement with the proposition in question. That proposition was supported by the authority of the Supreme Court of the United States; and the applicability of the rule favouring a wide interpretation of remedial legislation, rather than a restrictive one, even in a case where the legislation is also penal, was asserted, as Mason CJ points out, in the joint judgment of Gibbs CJ, Mason, Wilson and Dawson JJ in Waugh v. Kippen [1986] HCA 12; (1986) 160 CLR 156 at 164. It was to this principle that Davies J made appeal when he said s. 50 "should be given a wide operation".

23. With respect to the construction of s. 50, account must also be taken of the established general rule, to which Gibbs J referred in Beckwith v. The Queen [1976] HCA 55; (1976) 135 CLR 569 at 574, that "a court will adopt that construction of a statute which will give some effect to all of the words which it contains". As was acknowledged in Australian Iron & Steel, a narrow meaning of the words "directly or indirectly", as they are used in s. 50, leaves them entirely without effect. For the word "acquire", as it must be construed by virtue of s. 4(4), in itself comprehends everything which Lockhart J suggests should be conceded to "indirectly".

24. Since it is well recognized that the Trade Practices Act, and particularly s. 50, drew on sources in the United States and Europe, there may be much to be said for the proposition that its language contains some reflection of the concepts of competition law accepted overseas. Those concepts may assist in the interpretation of otherwise doubtful passages. An application of that approach to the present problem would offer some support to the view expressed by Davies J in Australia Meat Holdings. For in von Kalinowski, Antitrust Laws and Trade Regulation (1991), vol. 3, para. 16.06 it is made clear, as regards the United States, that "an acquisition by a subsidiary or affiliate is covered by Section 7 (of the Clayton Act) if the acquisition by the parent would itself come within the terms of the statute". Von Kalinowski adds that the House Committee Report of 1949 on the bill that eventually became the amended Section 7 "is explicit on this point. It states that the section 'forbids not only direct acquisitions but also indirect acquisitions, whether through a subsidiary or an affiliate or otherwise.'" Reference may also be made to Jim Walter Corporation v. Federal Trade Commission [1980] USCA5 1846; 625 F 2d 676 (1980) and United States of America v. Tidewater Marine Service, Inc. 284 F Supp 324 (1968), which von Kalinowski cites. Section 7 of the Clayton Act, as amended in 1950 and 1980, relevantly provides:

"No person engaged in commerce ... shall acquire, directly or

indirectly, the whole or any part of the stock or other share

capital and no person subject to the jurisdiction of the

Federal Trade Commission shall acquire the whole or any part

of the assets of another person engaged also in commerce or

in any activity affecting commerce, where in any line of

commerce or in any activity affecting commerce in any section

of the country, the effect of such acquisition may be

substantially to lessen competition ... ."

(See Areeda and Kaplow, Antitrust Analysis, 4th ed. (1988) 808.)

25. In the European Economic Community, the more recent of the two "leading cases for the control of mergers under ARTICLES 85 and 86 of the EEC Treaty" (Rowley and Baker, International Mergers The Antitrust Process (1991) 14) is British American Tobacco Company Ltd v. Commission of the European Communities (1987) ECR 4,487; (1988) 4 CMLR 24. In the report of that case, the distinction is repeatedly made between the acquisition of a direct investment in another undertaking and the acquisition of an indirect investment in another undertaking. (Of course, it must be recognized that the E.E.C. Merger Control Regulation is concerned, inter alia, as Article 3 makes clear, with the acquisition of "direct or indirect control" of an undertaking, whether by purchase of securities or assets or by other means, being thus somewhat further removed from s. 50 than is s. 7 of the Clayton Act.) The case concerned two different agreements, by the former of which (made in 1981) Philip Morris Incorporated acquired a substantial interest in a company having a majority holding in Rothmans International (also referred to as Rothmans). By the second agreement (made in 1984) Philip Morris agreed to transfer back the shares acquired under the earlier, and acquired instead a significant shareholding in Rothmans International. Referring to the agreement of 1981, the opinion of the Advocate General, Mr Mancini (at 4556), described it as involving a transfer to Philip Morris "indirectly (of) a 21.9% share of the profits of its competitor, Rothmans". The judgment of the Court of Justice of the European Communities (at 4,568) expressed the same view of the matter. It went on (at 4,569) to use the expression "indirect shareholdings in Rothmans International", and described the 1984 agreement as having the effect that "Philip Morris abandoned its shareholding in (the holding company) in exchange for a direct shareholding in Rothmans International". (See also Downes and Ellison, The Legal Control of Mergers in the European Communities (1991), pp 46-47.)

26. The conclusion seems clear that, in the antitrust law of the United States and in the competition law of the European Economic Community, the expression "directly or indirectly", in a context similar to that of s. 50, would be understood as suggested by Davies J. It may be added that such a usage would not be unique: cf. Revlon Inc. v. Cripps & Lee Ltd. (1980) FSR 85 at 105, where Buckley LJ (with whom Bridge LJ agreed) described a trade mark of a company as "remotely" an asset of its holding company. But, in the present state of the authorities, the correct construction of s. 50, in this respect, must be regarded as still somewhat unsettled. One proposition which does seem to emerge with clarity is that, wherever the line is to be drawn, the section is intended to have an extensive reach. I should not dismiss a prima facie case as wholly untenable, as counsel for Gillette submitted I should do, simply on the ground that it involves an indirect acquisition in the sense explained by Davies J. That sense is at least strongly arguable - to use Lord Radcliffe's test in Vitkovice Horni (supra).

27. The amended statement of claim begins by establishing the identity of the Trade Practices Commission and of Gillette, which it describes as a foreign corporation, having its corporate headquarters in Massachusetts and being the holder of all but two of the 2,826,771 issued shares in Gillette Australia Pty Limited ("Gillette Australia"). It alleges that Gillette at all material times carried on business in Australia by its agent or instrument Gillette Australia, and further or alternatively, that it so carried on business in Australia by its agent or instrument Gillette Management Pty Limited ("Gillette Management"), "such business comprising the management, supervision and co-ordination of the business of the Asia-Pacific Group of the International Group of Gillette, a division of Gillette ("the Asia-Pacific Group"). Very extensive particulars are set out in the amended statement of claim in respect of each of the allegations of carrying on business in Australia by Gillette Australia and Gillette Management; and, in general terms, it may be stated that those particulars are supported prima facie by the evidence put before me.

28. The amended statement of claim then proceeds, by para. 2A, to state a further or alternative basis upon which it is alleged Gillette has relevantly carried on business in Australia. In that paragraph, it is stated that "the business carried on by Gillette has included identifying businesses throughout the world which it may acquire and the acquisition of such business(es)". Extensive particulars are set out relating to businesses alleged to have been acquired in many countries during the period between 1967 and 1992. This business is alleged to have been pursued in Australia during 1989 and 1990, a matter which is again particularized and evidenced on a prima facie basis.

29. By para. 2B, it is then pleaded, further or alternatively, that Gillette carried on business in Australia at all material times, "such business comprising the acquisition, licensing for reward and promotion of trade marks of which it was, or became, the registered proprietor under the Trade Marks Act 1955". The particulars and evidence refer to Gillette trade marks relating to wet shaving razor blade products owned by Gillette, of which Gillette Australia was registered user, and to the global promotion of these trade marks, including in Australia, by the medium of television.

30. The amended statement of claim then turns to the second respondent Wilkinson Sword Limited ("Wilkinson Sword"), which it alleges is a foreign corporation incorporated under the laws of the United Kingdom and carrying on business, prior to 7 January 1991, in Australia through its agent or instrument WSGAL Pty Limited ("WSGAL").

31. Paragraph 4 alleges that until 30 June 1991 the third respondent WSGAL carried on business in Australia, including the business ("the business") of the supply of "Wilkinson Sword" razors within Australia by wholesale. WSGAL is alleged to have had trade mark, patent and distribution rights in relation to Wilkinson Sword razors. It is a trading corporation formed in Australia.

32. The amended statement of claim alleges three acquisitions, described respectively as the first, second and third acquisition. These are pleaded in paragraphs 8 to 18 of the amended statement of claim, and I set out this portion of it in full:

"The First Acquisition

8. On or about 20 December 1989 or some time thereafter

Gillette acquired, or alternatively secured a

conditional right to acquire, directly, or

alternatively indirectly, an interest in the business

and thereby acquired directly an equitable interest

in the assets of the business including the trade

marks, patent rights distribution rights and goodwill

relating thereto.

9. The acquisition referred to in paragraph 8 ('the

First Acquisition') was effected by, inter alia:-

(a) a conditional purchase and sale agreement made

on 20 December 1989 whereby Stora Kopparbergs

Vergslage AG ('Stora'), a body corporate

incorporated in Sweden, agreed to sell to

Eemland Management Services BV ('Eemland'), a

body corporate incorporated in the Netherlands,

certain assets of its subsidiaries, Swedish

Match BV or Swedish Match NV or Swedish Match

AB or one or more of them, including the world

wide business of Wilkinson Sword, which assets

included the business and the assets of the

business;

(b) a further agreement made on 20 December 1989

whereby Eemland agreed immediately on the

completion of the acquisition from Stora to

sell to Gillette assets of various shaving

businesses situated outside the European

Community, including the business ('the non-EC

Sale Agreement');

(c) an intellectual property, manufacturing and

distribution agreement made on 2 January 1990,

between, inter alia, Eemland, Wilkinson Sword

and Gillette;

(d) the satisfaction of the conditions referred to

in (a) above.

10. The First Acquisition occurred either:-

(a) on the execution on or about 20 December 1989

of the agreements referred to in paragraph 9(a)

and (b) above; or

(b) at a later time, not presently known to the

Applicant, but possibly in 1990, upon the

satisfaction of the conditions to which the

said agreements referred.

11. The First Acquisition included the acquisition of an

interest in the business and in the trade marks,

patent rights, distribution rights and goodwill of

the business which occurred in Australia by reason of

the situs of the trade marks, patent rights,

distribution rights and goodwill being Australia.

The Second Acquisition

12. At all material times prior to 8 October 1990 or

alternatively prior to 20 December 1990 Eemland was

the ultimate holding company of Wilkinson Sword and

WSGAL.

13. On 20 December 1990 WSGAL and its then holding

company, Platinumfire Pty Limited, a company

incorporated in Australia, entered into one or more

agreements whereby they or one of them agreed that on

completion (which took place on 29 January 1991 or

some time prior thereto) WSGAL's beneficial ownership

in the business was thereafter held for the benefit

of Gillette or a nominee of Gillette, and agreed to

transfer the business to such nominee as it might be

directed by Gillette upon satisfaction of certain

conditions.

14. By reason of the matters alleged in paragraphs 12 and

13 Gillette acquired directly or indirectly an

equitable interest in the business and each of the

assets of the business including the trade marks,

patent rights, distribution rights and goodwill of

the business ('the Second Acquisition').

15. The Second Acquisition occurred in Australia by

reason:-

(a) of WSGAL agreeing in Australia to hold its

beneficial ownership in the business for

Gillette or its nominee; or alternatively

(b) by reason of WSGAL transferring in Australia

the beneficial ownership in the business to

Platinumfire and Platinumfire thereafter

agreeing to hold that beneficial ownership in

the business for Gillette or its nominee; or

alternatively

(c) by reason of the situs of the business and its

said assets being in Australia; or

alternatively

(d) by reason of any combination of (a), (b) or (c)

above.

The Third Acquisition

16. By a deed of assignment dated 7 January 1991

Wilkinson Sword assigned to Gillette all trade marks

registered, applied for or used in Australia relating

to the business together with the goodwill of the

business concerned in the goods for which the trade

marks were registered and consented to Gillette being

entered on the Register of Trade Marks as the

subsequent proprietor of the said trade marks.

17. Thereafter Gillette applied to the Registrar of Trade

Marks for, and obtained registration of, its title to

the trade marks and cancellation of the registration

of WSGAL as registered user of the trade marks.

18. By reason of the matters alleged in paragraphs 16 and

17 Gillette acquired legal title to the trade marks

which acquisition occurred in Australia by reason of

the situs of the trade marks and, or alternatively,

the situs of the Register of Trade Marks, being in

Australia ('the Third Acquisition')."

33. The amended statement of claim then alleges that "there was and is a market in Australia for the supply of wet shaving razor blade products", and sets out details of a kind which might be expected in relation to such an allegation. It proceeds, by para. 20, to allege that at all material times the share of Gillette of the products supplied in the market was approximately 51.4%, while Wilkinson Sword (at 17.6%) and Schick (at 18.2%) were the only other brands having more than 10%. It alleges that at all material times there were high barriers to entry to the market and "the Gillette trade marks were characterized by significant product differentiation and high levels of sales promotion leading to a high level of brand awareness and brand loyalty". By para. 23 it is alleged that "Gillette was, or alternatively Gillette and Gillette Australia together were, the market leader", and able to set prices substantially unaffected by competitors' prices, and that competitors were accustomed to follow that price leadership.

34. Paragraph 24 alleges that "(a)s a result of the acquisition (which result occurred after the first acquisition, the second acquisition or alternatively, the third acquisition) from Wilkinson Sword by Gillette of the business", Gillette can dictate its operation; opportunities for competition have been eliminated; concentration in the market has increased very significantly; Gillette's position, in effect, is strengthened; a potential competitor has been eliminated, etc. As a result of any or all of the acquisitions, Gillette is alleged to have been or to have been likely to be in a position to dominate the market, or alternatively it was in such a position and any or all of the acquisitions did substantially strengthen its power, or was or were likely to do so. Contravention of s. 50(1)(a) or alternatively s. 50(1)(b) is alleged.

35. The amended statement of claim then goes on to allege the involvement of Wilkinson Sword and WSGAL in Gillette's contravention of the Act "in that they and each of them was directly or indirectly knowingly concerned in or party to the contravention".

36. Having summarized the amended statement of claim, and it being clear that the allegations of fact in it are generally supported prima facie by the evidence, I am left (before coming to the exercise of my discretion) with the question whether Gillette is right in its contention that this statement of claim does not articulate any case against it. But quite apparently, the pleading does allege each of the ingredients of a contravention of s. 50. Counsel claims many of the allegations were surplusage; however, if there are unnecessary allegations, that is not a matter destructive of the prima facie case for the relief sought which is the test under Order 8 rule 2(2)(c). Of course, surplusage to the point of embarrassment would be remediable, but the remedy for it would not (at least ordinarily) be an application to set aside service.

37. Relying on certain observations made in Tycoon Holdings Ltd (supra), Gillette argued that some among the number of alternative bases on which contravention of s. 50 was alleged, were not sufficiently proved. This contention, in my opinion, pushes those observations in Tycoon Holdings Ltd too far. In any case, where, as here, a right to relief is claimed to have arisen out of very complex circumstances, the approach taken by French J in State of Western Australia v. Vetter Trittler Pty Ltd seems to be both practical and in accord with the language of the rule. If a prima facie case is shown for the relief sought, and service out of the jurisdiction is otherwise appropriate, why should the applicant be forced to fight its forensic battle with one hand tied behind its back? In any other proceeding, it would be able to put forward alternative ways of stating its case, which the evidence at trial might establish, though the evidence at present available might point to them with only a doubtful finger. I think, it can do so here, even if, as the matter now appears, the argument for a particular alternative is weak. Each way in which the case is stated supports the relief sought in the originating process.

38. It is important that the questions arising when a party served outside the jurisdiction seeks to have the service set aside be kept distinct from the questions which might arise upon, for instance, a dispute about further and better particulars, or about a point of pleading. A procedure which did not observe that distinction would be cumbersome to the point of absurdity. Every error of technique could force an applicant to start again from the beginning in a snakes-and-ladders kind of justice. Order 8 rule 2(2)(c) eschews such an approach in favour of substance, and asks simply whether "the applicant has a prima facie case for the relief which he seeks".

39. Insofar as the applicant relies on evidence that, in various ways, Gillette has acknowledged the conduct of business in Australia by Gillette Australia and Gillette Management as its own conduct of business through them or either of them as its agents or instruments, a specific attack was mounted by counsel on the legal basis for such a view. He referred to Salomon v. A. Salomon and Company, Limited (1897) AC 22; Industrial Equity Limited v. Blackburn [1977] HCA 59; (1977) 137 CLR 567 at 577; Briggs v. James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 at 576-577; Adams v. Cape Industries Plc. (1990) 1 Ch 433; and J.H. Rayner (Mincing Lane) Ltd v. Department of Trade and Industry (1989) 1 Ch 72 at 190 (though see also the last case at 251-252) as authorities against regarding the actions of a wholly owned subsidiary as the actions of its holding company. He submitted that the statements made on behalf of Gillette which were in evidence were attributable to loose colloquial usage, and should not be understood literally. However, the statements do not stand alone. They are supported by much evidence of the practical reality of Gillette's activities overseas, including in Australia. A large United States corporation would be expected to have in-house legal advisers knowledgeable in the law. The statements in question may have had their origin, not at all in loose colloquialism, but rather in a correct appreciation of the true legal position according to United States law, which is not significantly different in this respect from ours: Bulova Watch Company, Inc. v. K. Hattori & Co., Ltd. 508 F Supp 1322 (1981) at 1,333-1,334, per Weinstein CJ. (See also Amalgamated Wireless (Australasia) Ltd v. McDonnell Douglas Corporation (1987) 77 ALR 537 at 539-540; Spreag v. Paeson Pty Ltd (1990) 94 ALR 679 at 710-712; Ascot Investments Proprietary Limited v. Harper [1981] HCA 1; (1981) 148 CLR 337 at 354-355; Smith, Stone and Knight, Ltd. v. Lord Mayor, Aldermen and Citizens of the City of Birmingham (1939) 4 All ER 116; and Merchandise Transport Ltd. v. British Transport Commission (1962) 2 QB 173 at 202, per Devlin LJ.) It is a question of fact. For present purposes, what is important is that a prima facie case is raised, against which there has been neither qualifying or contradictory evidence, nor even argument in any detail upon the effect of the material before the Court.

40. Another specific matter put by Mr Campbell relates to that part of the amended statement of claim which pleads, as one basis on which Gillette is alleged to have carried on business in Australia, that Gillette's business has included the acquisition of other businesses throughout the world, including in Australia. Mr Campbell says this is no basis on which an allegation of contravention of s. 50 can be asserted. For s. 4(4)(b) excludes from the definition of acquisition, in relation to assets, "an acquisition in the ordinary course of business". If Gillette's business includes acquiring other businesses, says counsel, its acquisition of the business of the supply of "Wilkinson Sword" razors within Australia must have been in the ordinary course of its business. But the exclusion does not refer to the ordinary course of the acquirer's, or anyone else's, particular business - it refers to "the ordinary course of business". Cf. Taylor v. White [1964] HCA 11; (1964) 110 CLR 129 at 136. The origin of the exclusion, and the reason for it, are both made plain in Areeda and Turner, Antitrust Law (1980) vol. V pp 302 et seq., where it is stated that s. 7 of the Clayton Act was interpreted as not covering a purchase of an item "sold and purchased in the ordinary course of business", as, for example, a typewriter sold by IBM to General Motors. If the Trade Practices Act were interpreted in accordance with Gillette's argument, it would, as Mr Hilton pointed out, attack the amateur acquirer as a monopolist, while letting the professional and systematic acquisition of competing businesses strictly alone. This is hardly likely to have been the legislative intention. Significantly, s. 4(4)(a) of the Trade Practices Act does not except, from an acquisition of shares in the capital of a body corporate, an acquisition in the ordinary course of business. This omission underlines the conclusion that the United States learning on s. 7 of the Clayton Act was the source of the exception from s. 4(4)(b).

41. Gillette also submitted that the amended statement of claim was defective, in various respects, in its pleading of the first, second and third acquisitions. In my opinion, it is not open to a party, who is challenging the jurisdiction, filing only a conditional appearance or, as in the instant matter, no appearance, to raise arguments of this kind. If they were properly raised, they would involve a submission to the jurisdiction. The question is whether the applicant has shown a prima facie case for the relief he seeks. In any event, I would not, as at present advised, exercise my discretion to strike out these paragraphs. I see no reason why Gillette should not plead to them. It was suggested they manifest internal contradictions, but it is a commonplace of pleading to have alternatives, which need not be consistent with each other, and no embarrassment is demonstrated here. If Gillette says some allegations involve errors of fact or law, the remedy in this case is not to strike them out, but for Gillette to raise its factual or legal answers in its defence.

42. Inasmuch as I have a general discretion to exercise under Orders 8 and 9 (as to which cf. Equiticorp Industries Group Ltd v. Hawkins (1991) 3 NZLR 700 at 713; Hartwell Trent (Australia) Pty. Ltd. v. Tefal Societe Anonyme (supra)), I am clearly of opinion that I should exercise it in favour of the Trade Practices Commission. It is in the public interest that the issues in this case should be determined.

43. On behalf of WSGAL, it was submitted that para. 34 of the amended statement of claim failed to plead knowledge appropriately, and reliance was placed on Yorke v. Lucas [1985] HCA 65; (1985) 158 CLR 661 (see also Edwards v. The Queen [1992] HCA 19; (1992) 173 CLR 653). It may be that what is not express in the pleading of knowledge is sufficiently clearly implied, but the Trade Practices Commission has indicated its readiness to amend the pleading, and accordingly I shall simply give it leave to amend to plead expressly that WSGAL had knowledge of every essential element of the alleged contravention of s. 50.

44. Otherwise, the motions of Gillette and WSGAL should be dismissed. Almost all the time at the hearing was taken up by Gillette's motions. It should pay the Trade Practices Commission's costs. The costs of WSGAL's motion should be its costs in the action.