FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd (ACN 007 512 419) [2005] FCA 683

TRADE AND COMMERCE – unlawful trade practices – making of contract containing exclusionary provisions – where admission of contravention – parties substantially in agreement regarding appropriate relief – discretion of Court – matters to be taken into account when determining pecuniary penalties – relevance of agreement between parties – whether injunction restraining similar contravention should be limited in time – leave to seek later declaratory relief denied

TRADE AND COMMERCE – admitted contraventions by one respondent where more than one respondent – appropriateness of dealing with relief before conclusion of proceedings against other respondent

Trade Practices Act 1974 (Cth), ss 4D, 45(2), 45(2)(a)(i), 76, 76(1), 80

Australian Competition and Consumer Commission v George Weston Foods Limited [2004] FCA 1093, (2004) 210 ALR 486, cited

Markarian v The Queen [2005] HCA 25, referred to

Minister for Industry Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; (2004) ATPR 41-993, followed

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v LIQUORLAND (AUSTRALIA) PTY LTD (ACN 007 512 419) AND WOOLWORTHS LTD (ACN 000 0145 675)

N 769 OF 2003

GYLES J

31 MAY 2005

SYDNEY

THE COURT ORDERS THAT:

Injunctions

1.      The first respondent be restrained, whether by its directors, servants, agents or howsoever otherwise for a period of three years from the date of this order from making, or arriving at, or giving effect to, inducing or attempting to induce any person to make or arrive at, or give effect to, or being in any way knowingly concerned in, or party to, the making or arriving at, or giving effect to, any contract, arrangement or understanding with an applicant for a liquor licence in New South Wales which:

(a)        has legal effect independently of proceedings in the Licensing Court in respect of a liquor licence application; and

(b)        was made or arrived at by the first respondent for the purpose, or a substantial purpose, of preventing, restricting or limiting the supply of take-away liquor by the said applicant –

provided that this order does not prevent the first respondent from raising any objection or making any submission in the Licensing Court of New South Wales to the effect that, in exercising its powers with respect to a liquor licence application, the Licensing Court should have regard to the fact that the applicant for the liquor licence, or any other person consents, or previously consented to conditions being placed on a liquor licence, whether such consent is or was given pursuant to a settlement of a dispute or otherwise.

Pecuniary penalties

2.         In respect of each contravention of s 45(2)(a)(i) constituted by the entry of the first respondent into the written agreements in the form of deeds:

(a)        dated 18 August 1997, with Jin Ro Australia Pty Ltd and Deannah Jang and the second respondent;

(b)        dated 26 November 1998 with Ettamogah Darling Harbour Pty Ltd, Leigh Christopher O’Brien and Ralph Joseph Patterson and the second respondent;

(c)        dated 1 March 2000 with Sandra May Hopkins, The Palms Shopping Village Pty Ltd, John Saunders, Malcolm Logan, Thomas Cahill, the second respondent and D&D Haslam Pty Ltd;

(d)        dated 12 May 2000 with Rhonda Christine Franks and Bo-Jean Pty Limited; and

(e)        made in or about November 2000 with David John Dixon and Donna-Marie Dixon and the second respondent

the first respondent pay to the Commonwealth a pecuniary penalty in the sum of $950,000 (representing penalties totalling $4,750,000).

Discontinuance

3.         The applicant otherwise be granted leave to discontinue the proceedings against the first respondent and those proceedings are hereby discontinued on condition that

(a)        the applicant not make any claim, demand or institute or reinstitute any proceeding against the first respondent in respect of any of the matters contained in the further amended statement of claim; and

(b)        there be no order as to costs against the applicant by reason of the discontinuance against the first respondent.

Other orders

4.         The first respondent make a contribution to the applicant’s costs in the sum of $250,000.00.

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

REASONS FOR JUDGMENT

1                     In this case a statement of facts has been agreed between the applicant, the Australian Competition and Consumer Commission (the ACCC) and the first respondent, Liquorland (Australia) Pty Ltd (Liquorland).  Liquorland has admitted that the agreed facts establish certain contraventions of s 45(2) of the Trade Practices Act 1974 (Cth) (the Act).  That is reflected in admissions on the pleadings.  These parties are substantially in agreement as to the relief that is appropriate to be granted. 

2                     The other respondent, Woolworths Ltd (Woolworths), is defending the proceedings.  That case is presently proceeding before Allsop J.  Liquorland desires to have its position clarified as soon as possible and the ACCC agrees with that course.  I therefore agreed to deal with the case against it.  After some initial hesitation, Woolworths is now content that this take place provided that it is understood that no admission made by Liquorland and no finding of fact by me will be binding upon Woolworths.  That is agreed by all parties.

3                     The statutory provisions in issue are as follows:

‘45(2)    A corporation shall not:

(a)    make a contract or arrangement, or arrive at an understanding, if:

(i)     the proposed contract, arrangement or understanding contains an exclusionary provision;’

‘4D(1)   A provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be taken to be an exclusionary provision for the purposes of this Act if:

(a)    the contract or arrangement was made, or the understanding was arrived at, or the proposed contract or arrangement is to be made, or the proposed understanding is to be arrived at, between persons any 2 or more of whom are competitive with each other; and

(b)    the provision has the purpose of preventing, restricting or limiting:

(i)     the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons; or

(ii)    the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons in particular circumstances or on particular conditions;

by all or any of the parties to the contract, arrangement or understanding or of the proposed parties to the proposed contract, arrangement or understanding or, if a party or proposed party is a body corporate, by a body corporate that is related to the body corporate.

(2)   A person shall be deemed to be competitive with another person for the purposes of subsection (1) if, and only if, the first-mentioned person or a body corporate that is related to that person is, or is likely to be, or, but for the provision of any contract, arrangement or understanding or of any proposed contract, arrangement or understanding, would be, or would be likely to be, in competition with the other person, or with a body corporate that is related to the other person, in relation to the supply or acquisition of all or any of the goods or services to which the relevant provision of the contract, arrangement or understanding or of the proposed contract, arrangement or understanding relates.’

4                     I have decided to adopt the substance of the relief suggested by the parties.  In order to explain that decision I should set out the precise agreed facts and admissions which have been made.  These follow, with necessary editing.  Evidence supplementing the facts was admitted.

5                     In these proceedings the ACCC alleges that Liquorland entered into agreements, constituted and evidenced by a deed, which constituted contracts, arrangements or understandings for the purposes of s 45 of the Act with various applicants for liquor licences in New South Wales (and related interests) during the period 1997 to 2001, which, in each case, contained exclusionary provisions in relation to the retail supply of liquor for off-premises consumption (also known as takeaway liquor).  During that period Liquorland was a major retailer of takeaway liquor.

6                     The context of the deeds in each case was that there had been an application to the Liquor Licensing Court, for the grant of a liquor licence.  In each case Liquorland had existing retail liquor outlets in the vicinity of the licence applicant's proposed premises.  Relevantly, Liquorland then lodged an objection to the application or advised the licence applicant that an objection would be made.  The consequence of making such objections was that there would be a contested hearing for the grant of the application.  If, on the other hand, the objections were withdrawn and there were no objections by the second respondent, then the licence was likely to be granted.

7                     In each case Liquorland then entered into negotiations with the applicant for the licence, offering to withdraw or not pursue the objection, provided that the applicant (and interests associated with the applicant) agreed to restrictions being placed upon their ability to retail takeaway liquor.  After those negotiations, the liquor licence applicants entered into deeds with Liquorland containing restrictive conditions.  In each case agreement was reached as to restrictions to be incorporated as conditions attached to the licence which restrictions were also to be specified in a deed between the parties.  The deeds constituted specific contractual obligations on the applicants to conform to restrictions in similar terms to the conditions imposed on the licence.  Such contractual obligations operated in addition to and independently of the statutory licensing regime.  In each case the applicant was contractually obliged to request the Court to impose conditions upon the licence itself and, in four of the five cases the subject of these agreed facts, could not, at a later date, apply to amend, revoke or vary the conditions imposed upon the licence. In the fifth case the applicant was contractually obliged to request the Court to impose conditions upon the licence itself and could not, at a later date, apply to amend, revoke or vary the conditions imposed upon the licence without first giving 14 days notice to Liquorland at its registered office.  None of the objections thus proceeded to a hearing on the merits.

8                     In broad terms, these deeds restricted the type and/or quantity of takeaway liquor the licence applicant/owner would be able to stock at the premises; restricted the location and configuration of the store and/or restricted the means by which such sales could be made (eg restricted the supply to mail order sales).

9                     The deeds also, in each case, restricted the applicant's ability to apply to revoke, amend or vary the conditions imposed on the licence pursuant to the deeds entered into with Liquorland.

10                  Furthermore, the deeds restricted any subsequent sale of the licence to a third party by requiring that the applicant procure the third party to enter into a like deed with Liquorland.

11                  The deeds provided that the consideration for the covenants the licence applicant (and related interests) gave was the withdrawal of any objection which Liquorland had made or had indicated would be made to the licence application.

12                  Liquorland is a trading corporation which carries on the business of retailer of goods which includes the supply of takeaway liquor.

13                  Each of the five licence applicants applied for a liquor licence in relation to particular premises, specifically:

(a)     Deannah Jang for Jin Ro Australia Pty Limited (Jin Ro) at 7 Willis Street Arncliffe, New South Wales;

(b)     Ralph Patterson for Ettamogah Darling Harbour Pty Limited (Ettamogah) at MacArthur Square Shopping Centre, Campbelltown, New South Wales;

(c)     Sandra Hopkins for The Palms Shopping Village Pty Limited (Palms Village) at 122 Dry Dock Road Tweed Heads South, New South Wales;

(d)     Rhonda Franks for Bo-Jean Pty Limited (Bo-Jean)/Henry Kendall at 299 Brisbane Waters Drive West Gosford New South Wales; and

(e)     David Dixon for Global Beer Importers at 44–46 Ourimbah Road, Tweed Heads, New South Wales.

14                  Part 8 of the Liquor Act 1982 (NSW) (the Liquor Act) rendered it a criminal offence to, inter alia, sell liquor without being authorised to do so under that Act (s 122).  The authority to sell liquor under the Liquor Act was obtained by way of licences issued by the Licensing Court of New South Wales.  That Court, established pursuant to Pt 2 of the Liquor Act, had jurisdiction and powers conferred on it by the Liquor Act (and other Acts).  It had jurisdiction throughout New South Wales.  The Licensing Court comprised a chairperson, a deputy chairperson and other licensing magistrates appointed under s 8 of the Liquor Act. Proceedings before the Court were generally instituted by way of an application and such proceedings were regulated in the same way as summary proceedings before a Local Court (s 12(1)).

15                  Section 18(1) empowered the Licensing Court to:

‘grant a licence in a form approved by the Board authorising the licensee to sell liquor on the premises specified in the licence’

[‘Board’ meant the Liquor Administration Board].

The types of licences which could be granted by the Licensing Court were set out in s 18(2).  In relation to the present proceedings, there were two relevant forms of licence, namely:

(1)        a hotelier's licence, being a licence that authorises the licensee to sell liquor by retail on the licensed premises, whether or not for consumption on those premises (Hotelier's Licence) (s 18(2)(a)); and

(2)        an off-licence, being a licence that authorises the licensee to sell liquor on the licensed premises, but only for consumption otherwise than on those premises (off-licence) (s 18(2)(b)).

An off-licence could be a licence to sell liquor by retail (s 18(3)(a)) or by wholesale (s 18(3)(c)).

16                  The conditions which could be imposed on a liquor licence were dealt with in Div 2 of Pt 3 of the Liquor Act.  The issue of liquor licences by the Licensing Court were always subject to prescribed conditions such as fulfilling requirements related to harm minimisation and the responsible service of alcohol.  For the purposes of the present proceedings, such conditions are not of significance.

17                  Under the Liquor Act, other conditions could be imposed by the Licensing Court.  Section 20(1) of the Liquor Act provided, relevantly.

‘The Court may:

(a)       On the hearing of an application for the grant of a licence or of any matter relating to a licence – of its own motion or on the application of a party to the hearing ... impose conditions not inconsistent with this Act without prior compliance with which the grant does not take effect or to which the licence is to be subject.’

18                  Section 20(2) of the Liquor Act provided that:

‘A licence is subject to:

…

(b)               any conditions imposed under sub section (1) ...’

19                  The procedure for making applications for liquor licences was set out in Pt 3, Div 4 of the Liquor Act.  Section 37(1) provided as follows:

‘An application under this Act shall be made and advertised as prescribed, shall be accompanied by the prescribed documents and shall be lodged as prescribed.’

Jin Ro:  Willis Street, Arncliffe, New South Wales

20                  Some time in 1997 Jae Jang and Deannah Jang proposed to apply pursuant to the Liquor Act for:

(a)     a wholesale off-licence; and

(b)     a retail off-licence;

for premises in Willis Street, Arncliffe, New South Wales (the Willis premises).

21                  Liquorland was a competitor or potential competitor to Jin Ro.

22                  On or about 11 July 1997 Deannah Jang applied for a retail off-licence for the Willis premises to supply takeaway liquor, specifically the supply of Korean liquor by mail order (the Jin Ro application).

23                  A Liquorland representative appeared as an objector in the Licensing Court at the mention of the Jin Ro application.

24                  Jin Ro's representatives entered into negotiations with Liquorland in relation to conditions to be imposed upon their licence; failing agreement Liquorland would maintain its objection to the licence.

25                  On or about 18 August 1997 a Deed of Agreement (the Jin Ro Deed) was entered into between, amongst others, Jin Ro Australia Pty Limited, Deannah Jang, (together the Jin Ro parties) and Liquorland. 

26                  By entering into the Jin Ro Deed the parties made a contract or arrangement or entered into an understanding which included an exclusionary provision within the meaning of s 4D of the Act.  Pursuant to the Jin Ro Deed:

(a)     The Jin Ro parties agreed to comply with certain conditions imposed on their licence, including:

(i)      not to maintain a display of, or display, liquor available for sale at the premises;

(ii)      not to allow customers to attend on the premises to make purchases of, place orders for the purchase of, any liquor or to collect any such liquor,

(iii)     not to accept any order for the sale of liquor other than orders received by telephone, post, facsimile, telex or electronic mail;

(iv)     not to deliver or cause to be delivered liquor to any customer on the premises or any other premises within 100 metres of the Willis premises; and

(v)     to sell only traditional Korean liquor products made and packaged in Korea and imported into Australia from Korea.

(b)     The Jin Ro parties agreed to request that the Licensing Court impose those conditions on the off-licence granted in respect of the Willis premises;

(c)     The Jin Ro parties agreed jointly and severally not to cause to be made or allow to be made any application for amendment, revocation or variation of the conditions contained in clause 1 of the Jin Ro Deed whilstever the Licence attached to the Willis premises or any other premises to which the licence may be removed from time to time;

(d)     The Jin Ro parties agreed that in the event the licence was transferred, the Jin Ro parties agreed to procure agreement from the transferee to enter into a deed containing the same restrictions as the Jin Ro Deed; and

(e)     Liquorland agreed not to press its objection to the Jin Ro parties' application for the off-licence.

27                  A substantial purpose of the Jin Ro Deed was to prevent, restrict or limit the supply of takeaway liquor by Jin Ro to particular persons or classes of persons, including:

(a)     customers or potential customers of Jin Ro;

(b)     customers or potential customers of Jin Ro who wanted to purchase takeaway liquor other than Korean liquor; and

(c)     customers of Liquorland's Rockdale store.

28                  The application was granted on 18 August 1997 subject to the conditions in the Jin Ro Deed.

Ettamogah:  Macarthur Square Shopping Square, Campbelltown, New South Wales

29                  On or about 15 April 1998 Ralph Patterson (Patterson) applied for a grant of a Hotelier's licence in respect of premises operated by Ettamogah situated at Campbelltown, New South Wales, premises to enable Ettamogah to operate a bar and restaurant at those premises, such an operation to include the supply of takeaway liquor (the Ettamogah application).

30                  Liquorland was a competitor or potential competitor to Ettamogah.

31                  Ettamogah representatives entered into negotiations with Liquorland in relation to conditions to be imposed upon their licence; failing agreement Liquorland would lodge or maintain an objection to the licence.

32                  On or about 26 November 1998 a Deed of Agreement (the Ettamogah Deed) was entered into between, amongst others: Ettamogah and Patterson (the Ettamogah parties); and Liquorland.

33                  By entering into the Ettamogah Deed the parties made a contract or arrangement or entered into an understanding which included an exclusionary provision within the meaning of s 4D of the Act.  Pursuant to the Ettamogah Deed:

(a)     The Ettamogah parties agreed to comply with certain conditions, including:

(i)        not to construct or maintain a bottle shop or drive away facility on the Campbelltown premises for the supply or sale of liquor to be consumed off the premises;

(ii)        restricting the sale of take away liquor to a single place in Campbelltown premises;

(iii)       not to sell or advertise the sale or conduct promotions for the sale of any take away liquor other than that which specifically referred to the thematic concept of the Ettamogah Pub Mob cartoon and its characters and are sold under Ettamogah Pub Mob Cartoon label which is owned by Patterson or by his employer, and

(iv)       not to deliver or cause to be delivered liquor other than at the Campbelltown premises.

(b)     The Ettamogah parties also agreed not to apply to amend, revoke or vary any of the conditions;

(c)     The Ettamogah parties agreed to request that the Licensing Court impose those conditions on the licence granted in respect of the premises;

(d)     The Ettamogah parties agreed, in the event the licence was transferred, that they would procure agreement from the transferee to enter into a deed containing the same restrictions as the Ettamogah Deed;

(e)     Liquorland agreed not to press its objection to the Ettamogah application.

34                  A substantial purpose of the Ettamogah Deed was to prevent, restrict or limit the supply of takeaway liquor by Ettamogah to particular persons or classes of persons, including:

(a)     customers or potential customers of Ettamogah who wished to purchase takeaway liquor at the Campbelltown premises;

(b)     customers of Liquorland's two stores in Campbelltown.

35                  The Ettamogah application was granted on 26 November 1998 with effect from 19 January 1999.

Palms Village:  Dry Dock Road Tweed Heads South, New South Wales

36                  On or about 5 July 1999 Sandra Hopkins (Hopkins) applied to the Licensing Court for the grant of an off-license (retail) in respect of premises in Dry Dock Road, Tweed Heads South, New South Wales (the Dry Dock premises), operated by Palms Village to enable Palms Village to operate a retail bottle shop for those premises, such an operation to include the supply of takeaway liquor (the Palms Village application).

37                  In August 1999 Liquorland lodged a notice of objection to the Palms Village application.

38                  Liquorland was a competitor or potential competitor to Palms Village.

39                  Representatives of Palms Village entered into negotiations with Liquorland in relation to conditions to be imposed upon their licence; failing agreement Liquorland would lodge or maintain an objection to the licence.

40                  On or about 1 March 2000 a Deed of Agreement (the Palms Village Deed) was entered into between, amongst others: Hopkins and Palms Village (the Palms Village parties); and Liquorland. 

41                  By entering into the Palms Village Deed the parties made a contract or arrangement or entered into an understanding which included an exclusionary provision within the meaning of s 4D of the Act.  Pursuant to the Palms Village Deed:

(a)     the Palms Village parties agreed to comply with certain conditions, restricting certain activities for ten years, specifically, that:

(i)        the area and stock rooms of the Dry Dock premises would be that area depicted in the Palms Village application;

(ii)        no application would be made for the licence to be removed to other premises;

(iii)       no application would be made to redefine the premises for the licence to be transferred to other premises; and

(iv)       liquor would not be kept on the Dry Dock premises and associated stockrooms which (in the aggregate) was of a greater wholesale value than $55,000.

(b)     the Palms Village parties agreed to request that the Licensing Court impose those conditions on the licence granted in respect of the premises.

(c)     the Palms Village parties also agreed not to apply for amendments, revocation or variation of the conditions to the licence;

(d)     The Palms Village parties agreed, in the event the licence was transferred, that they would procure agreement from the transferee to enter into a deed containing the same restrictions as the Ettamogah Deed; and

(e)     Liquorland agreed to withdraw its notice of objection.

42                  A substantial purpose of the Palms Village Deed was to prevent, restrict or limit the supply of takeaway liquor by Palms Village to particular persons or classes of persons, including:

(a)     customers or potential customers of Palms Village who wished to purchase liquor at Palms Village's premises;

(b)     customers of Liquorland's two Tweed Head stores.

43                  On 10 August 2000 the Palms Village application was granted.

Henry Kendall:  Brisbane Waters Drive, West Gosford, New South Wales

44                  On or about 26 April 2000, Rhonda Franks (Franks) applied to the Licensing Court for the grant of a Hotelier's licence in respect of certain West Gosford, New South Wales, premises to operate a business by Bo-Jean that would include the supply of takeaway liquor (the Henry Kendall application).

45                  Liquorland was a competitor or potential competitor of Bo-Jean.

46                  On or about 3 May 2000 Liquorland represented to Franks that it required Franks to enter into a deed, failing which Liquorland reserved its right to lodge an objection to the Henry Kendall application.

47                  Representatives of Bo-Jean entered into negotiations with Liquorland in relation to conditions to be imposed upon the licence; failing agreement Liquorland would lodge or maintain an objection to the licence.

48                  On or about 12 May 2000 a Deed of Agreement (the Henry Kendall Deed) was entered into between Franks, Bo-Jean (the Henry Kendall parties) and Liquorland. 

49                  By entering into the Henry Kendall Deed the parties made a contract or arrangement or entered into an understanding which included an exclusionary provision within the meaning of s 4D of the Act.  Pursuant to the Henry Kendall Deed:

(a)     The Henry Kendall parties agreed to comply with certain conditions, including:

(i)      not to sell or supply liquor on or from the West Gosford premises for consumption off the premises;

(ii)     no separate takeaway liquor facility available at the West Gosford premises;

(iii)    no display of takeaway liquor available at the West Gosford premises; and

(iv)    not to deliver or cause to be delivered liquor at a place other than the West Gosford premises.

(b)     the Henry Kendall parties agreed to request that the Licensing Court impose those conditions on the licence granted in respect of the West Gosford premises;

(c)     the Henry Kendall parties agreed not to apply for amendments, revocation or variation of the conditions contained in the Henry Kendall Deed;

(d)     the Henry Kendall parties agreed, in the event the licence was transferred, that they would procure agreement from the transferee to enter into a deed containing the same restrictions as the Henry Kendall Deed; and

(e)     Liquorland agreed not to press its objection to the Henry Kendall application.

50                  A substantial purpose of the Henry Kendall Deed was to prevent, restrict or limit the supply of takeaway liquor by Bo-Jean to particular persons or classes of persons, specifically:

(a)     customers or potential customers of Bo-Jean; and

(b)     customers of Liquorland's West Gosford store.

51                  The Henry Kendall application was granted, with conditions, to take effect from 7 September 2000.

Global Beer Importers:  Ourimbah Road, Tweed Heads, New South Wales

52                  On or about 4 November 1999 David Dixon (Dixon) applied to the Licensing Court for the grant of an off-license (retail) license in respect of premises in Tweed Heads, New South Wales, to enable a business (Global Beer Importers) to operate a business from those premises with respect to certain supply of takeaway liquor specifically boutique beer (the Global Beer Importers application).

53                  In February 2000 Liquorland lodged a notice of objection to the Global Beer Importers application.

54                  On 7 September 2000 a second application was lodged by Dixon for Global Beer Importers (the Global Beer lmporters second application).

55                  Liquorland was a competitor or potential competitor of Global Beer Importers.

56                  The Dixons and their representatives entered into negotiations with Liquorland in relation to conditions to be imposed upon their licence; failing agreement Liquorland would maintain its objection to the licence.

57                  In or about November 2000 a Deed of Agreement (the Global Beer Importers Deed) was entered into between, amongst others:  Dixon and Donna-Marie Dixon (the Dixons); and Liquorland. 

58                  By entering into the Global Beer Importers Deed the parties made a contract or arrangement or entered into an understanding which included an exclusionary provision within the meaning of s 4D of the Act.  Pursuant to the Global Beer Importers Deed:

(a)     the Dixons agreed to comply with certain conditions being imposed upon their licence, including:

(i)      no sales other than sales of boutique imported beer from the premises. Boutique imported beer meaning beer/s which were imported into Australia and were of similar type to those shown in Annexure A to the affidavit of Dixon dated 13 October 2000 and/or which were not generally available in Liquorland's retail liquor stores in Tweed Heads;

(ii)     no sales to be made to the public attending the premises and no deliveries within 200 metres of the premises;

(iii)    no display area to be erected at the premises for the viewing of the public and no signage other than that required by law and for identification purposes to be erected at the premises;

(iv)    that the business would be conducted as a direct marketing business and orders would be accepted only via mail, internet, fax or phone order;

(b)     the Dixons agreed to request that the Licensing Court impose those conditions on the licence granted in respect of the premises;

(c)     the Dixons also agreed not to apply for amendments, revocation or variation of the conditions to the licence without first giving 14 days notice to Liquorland at its registered office;

(d)     the Dixons agreed, in the event the licence was transferred, that they would procure agreement from the transferee to enter into a deed containing the same restrictions as the Global Beer Importers Deed and give notice of any sale to Liquorland; and

(e)     Liquorland agreed to withdraw its notice of objection.

59                  A substantial purpose of the Global Beer Importers Deed was to prevent, restrict or limit the supply of takeaway liquor by Global Beer Importers to particular persons or classes of persons, namely:

(a)     customers or potential customers of Global Beer Importers who wished to purchase takeaway liquor from Global Beer Importers' other premises (the proposed premises the licence was to be transferred to);

(b)     customers of Liquorland's two Tweed Heads stores.

60                  On 6 November 2000 the Global Beers Importers' second application was granted with effect from 15 January 2001.

61                  By engaging in the conduct referred to in paragraphs 26, 33, 41, 49 and 58 above, Liquorland admits, in each case, it made a contract or arrangement or arrived at an understanding containing exclusionary provisions, and thereby contravened of s 45(2)(a)(i) of the Act five times.

62                  In the light of those agreed facts, the parties are agreed that the following is the appropriate order in relation to pecuniary penalty:

‘In respect of each contravention of s 45(2)(a)(i) constituted by the entry of the first respondent into the written agreements in the form of deeds:

(a)               dated 18 August 1997, with Jin Ro Australia Pty Ltd and Deannah Jang and the second respondent;

(b)               dated 26 November 1998 with Ettamogah Darling Harbour Pty Ltd, Leigh Christopher O’Brien and Ralph Joseph Patterson and the second respondent;

(c)               dated 1 March 2000 with Sandra May Hopkins, The Palms Shopping Village Pty Ltd, John Saunders, Malcolm Logan, Thomas Cahill, the second respondent and D&D Haslam Pty Ltd;

(d)               dated 12 May 2000 with Rhonda Christine Franks and Bo-Jean Pty Limited; and

(e)               made in or about November 2000 with David John Dixon and Donna-Marie Dixon and the second respondent

the first respondent pay to the Commonwealth a pecuniary penalty in the sum of $950,000 (representing penalties totalling $4,750,000).’

63                  The imposition of civil penalties is governed by s 76 of the Act which, so far as is relevant, provides:

‘(1)      … the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each act or omission by the person to which this section applies, as the Court determines to be appropriate having regard to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Court in proceedings under this Part or Part XIB to have engaged in any similar conduct.

(1A)     The pecuniary penalty payable under subsection (1) by a body corporate is not to exceed:

…

(b)      for each other act or omission to which this section applies—$10,000,000.’

64                  Leaving aside the particular matters identified in s 76(1) to which regard must be had, the Court’s discretion is unfettered.  Counsel referred to many authorities in which various judges had expressed views as to how the discretion ought to be exercised in particular circumstances.  Some appear to have been treated as if they lay down a mandatory checklist to be followed.  Judicial discretion should not be encrusted or confined in that way.  However, one matter that does warrant guidance in this case is the relevance of the agreement between the parties and the weight to be given to it if relevant.  That topic has recently been dealt with in a cognate context by the Full Court in Minister for Industry Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; (2004) ATPR 41-993.  I propose to direct myself in accordance with that decision.  There is no need to paraphrase or summarise it.

65                  The agreed facts disclose the nature and extent of the acts and omissions relied upon and the circumstances in which those acts and omissions took place.  Further, it is agreed that neither Liquorland nor its parent has previously been found to have engaged in conduct in breach of Pt IV of the Act.

66                  There is a question as to whether the agreed facts sufficiently deal with any loss or damage suffered as a result of these breaches.  Each of the deeds in question constituted a significant restriction upon the business of the third party compared with the position that would have pertained had that party obtained an unrestricted licence.  There has been no attempt to quantify the chance of obtaining an unrestricted licence in each case or the loss or damage which have been sustained by reason of the agreed restrictions.  It is also obvious that consumers lost the choice and competition between outlets that otherwise would have been available in the event that the third party did obtain an unrestricted licence.  Correspondingly, little attention has been paid to the other side of the coin – the gain accruing to Liquorland as a result of the breaches.

67                  For present purposes, I am prepared to assume against the wrongdoer that there was a significant chance that each of the third parties would have obtained an unrestricted licence.  It follows that there would have been significant loss or damage to those parties and a significant gain to Liquorland by reason of the contravening conduct.  It may also be assumed that there would have been a restriction of choice and competition affecting consumers.  Some greater attention to the detail of these matters would have been advantageous and may be necessary in some cases before penalty can properly be assessed, whether agreed or not.

68                  Counsel for each party put separate submissions in support of the proposed penalties.  Counsel for the ACCC emphasised the more serious aspects of the facts in order to justify a significant figure.  Counsel for Liquorland emphasised those aspects of the facts that would support a more lenient result.  It is necessary to consider the submissions in the light of the facts with a somewhat critical eye as there is no real contradictor.  Having done so in the manner explained recently by the High Court in Markarian v The Queen [2005] HCA 25 and having given appropriate weight to the agreement between the parties, I am satisfied that the proposed order for pecuniary penalties is appropriate.  It should be emphasised that this conclusion is based upon a particular set of agreed facts and a particular set of agreed contraventions, taking into account the time at which the agreement was reached.  It will provide little guidance one way or the other as to what penalties might have been appropriate if no agreement had been reached and the case had been fought through to a conclusion.

69                  The parties are agreed as to a form of injunction.  I am satisfied that it is appropriate that an injunction be granted pursuant to s 80 of the Act in the form proposed with one reservation, namely, the limit of the injunction to three years.  In a somewhat similar case of Australian Competition and Consumer Commission v George Weston Foods Limited [2004] FCA 1093; 210 ALR 486 at [30] I said:

‘I see every reason for making an order in relation to contravention ... It is difficult to see the reason for a time limit in relation to a properly framed injunction, bearing in mind s 80(3).’

I was nonetheless persuaded to grant an injunction limited in time in that case.

70                  The relevant parts of s 80 are as follows:

‘(1)      … where … the Court is satisfied that a person has engaged … in conduct that constitutes …

(a)     a contravention of …

(i)                 a provision of Part IV …

the Court may grant an injunction in such terms as the Court determines to be appropriate.

…

(3)       The Court may rescind or vary an injunction granted under subsection (1) or (2).

(4)       The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:

(a)     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;

(b)     whether or not the person has previously engaged in conduct of that kind; and

(c)     whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.’

71                  It will be seen that an order pursuant to s 80 is different from the grant of equitable relief by way of injunction which is, amongst other things, conditioned upon threat of repetition.  Whilst I do not doubt the jurisdiction and power to grant an injunction limited in time pursuant to s 80, I can only repeat my reservation as to the circumstances under which it may be appropriate to do so, bearing in mind the existence of sub-section (3).  Neither counsel was able to satisfactorily explain to me the logic behind the time limit in this case although it is fair to say that they did not come prepared to justify it.  Counsel for Liquorland did submit that the existence of a compliance program and the change in New South Wales licensing laws, together with the sharp shock administered by this case, means that it is unnecessary to subject Liquorland to the threat of contempt of court for any longer than three years.  As my reservations do not go to jurisdiction or power, I am prepared to make the order sought based upon the consent of the parties. 

72                  The only other contentious aspect of relief is that the ACCC sought liberty to seek declaratory relief against Liquorland following disposition of the proceedings against Woolworths.  That was opposed on behalf of Liquorland.  In my opinion, it is not appropriate to grant that liberty.  It is unsatisfactory to leave loose ends in litigation.  The only utility of making belated declarations that was advanced by counsel for the ACCC was that there should be no doubt as to the findings of contravention against Liquorland.  That concern is unnecessary in the present case.  The orders to be made impose pecuniary penalties for specified breaches of the Act and injunct future breaches.  Declarations should not be made in the abstract.  Any declaration which would be appropriate to be made in the present case would only be ancillary to the substantive relief.  With that exception, orders are made as sought.

Associate:

Dated:              31 May 2005