FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd [2005] FCA 524

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v LIQUORLAND (AUSTRALIA) PTY LTD AND ANOR

NSD 769 of 2003

ALLSOP J

29 APRIL 2005

SYDNEY

THE COURT ORDERS THAT:

1. That part of the matter and that part of the proceeding in respect of which the applicant and the first respondent jointly and severally move the Court for orders resolving the matter as between the applicant and the first respondent be referred to Gyles J for his consideration and determination in the week commencing 2 May 2005 at a time and date to be fixed.

2. The costs, if any contested issue as to costs becomes relevant arising from today's application, be reserved.

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

REASONS FOR JUDGMENT

1                     In this matter, the applicant and the first respondent have reached agreement as to the resolution of the issues between them. The Court is asked to make orders in the nature of injunctive relief, pecuniary penalties and otherwise dealing with the cessation of the proceeding against the first respondent, Liquorland (Australia) Pty Ltd.

2                     Material was handed to me on Tuesday when the matter was called on for hearing. Further material has been supplied to my chambers prior to this morning and to me in court today.

3                     The matter, as the parties are fully aware, concerns alleged contraventions by the first respondent and second respondent of s 45 (2) of the Trade Practices Act 1974 (Cth) (the Act) and in part involving s 4D of the Act.

4                     The resolution of the matter between the applicant and the first respondent involves an acceptance by the first respondent of contraventions in relation to s 4D of the Act but not otherwise. That is why the resolution of the matter will require the discontinuance and cessation of the proceedings against the first respondent in some respects.

5                     The nature of the settlement has been made public and involves the acceptance by the first respondent of the position whereby significant penalties would be ordered by the Court on the assumption of the acceptance of the terms of settlement by the Court.

6                     The argument of the applicant that continues in contested litigation with the second respondent involves not only the purpose of the second respondent, a purpose which is asserted and said to be in contravention of the Act, but also the purpose of, amongst other people, the first respondent.

7                     The material that will be necessary to consider in the application for orders against the first respondent involves admissions and an agreed position as to the purposes of parties, including the first respondent.

8                     The applicant does not seek to tender in evidence against the second respondent the fact of the settlement between it and the first respondent or the agreed material underlying the settlement. Nevertheless, the judge hearing the application for orders against the first respondent will need to consider the nature of the admissions and concessions made by the first respondent in order to satisfy himself or herself of the appropriateness of making the orders and, in particular, what penalty should be ordered in respect of the admitted contraventions.

9                     There is ample authority, with which I am familiar, of Judges of this Court dealing with settlements in multi-party cases in which the contested hearing is continuing with remaining parties. It is unnecessary to examine any of those cases to see whether this case is in any particular different position. I have the advantage that another Judge of the Court is available at short notice next week to deal with the penalty hearing.

10                  I propose to make an order referring the application for orders to that other Judge. The reason I do so is that I have considered the matter before today, having heard three days of evidence in the matter that is proceeding against the second respondent. Those days of evidence and the recognition of the extent of the evidence to come has led me to conclude that I should not take a step in relation to a consent application which might in any way have the possible result of providing anyone with an argument that the hearing before me has in any way miscarried or in any way might be seen to demonstrate an inappropriate course of conduct in the administration of judicial power of the Commonwealth.

11                  In particular, my concern is that it might be said that, by being satisfied to the requisite standard of the existence of contraventions based on admissions as to purpose of the first respondent, there was a residual apparent inability to deal with the same issues on a different body of evidence in the contested matter before Woolworths.

12                  Given the important nature of the application both to the applicant and to the second respondent and, indeed, to the public, and given the likely costs involved in a hearing which is anticipated to last up to five weeks at least for the evidence, I have come to the view that prudence dictates that another Judge should hear the application for orders against the first respondent.

13                  Mr Smith SC, counsel for the second respondent, has indicated today that his client will object to that other Judge making those orders, for reasons which I need not identify now but which were made clear shortly by Mr Smith some moments ago.

14                  I think it is inappropriate for me to make any comment on that application or on those arguments, and those matters are really matters I think for the Judge next week to deal with.

15                  Therefore, that part of the matter and that part of the proceeding in respect of which the applicant and the first respondent jointly and severally moved the Court for orders resolving the matter as between the applicant and the first respondent will be referred, and are referred, to Gyles J for his consideration and determination in the week commencing 2 May 2005 at a time and date to be fixed.

16                  I reserve the costs, if any contested issue as to costs becomes relevant arising from today's application.

Associate:

Dated: 3 May 2005