FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v Australian Karting Association (NSW) Incorporated [2009] FCA 1255
Judiciary Act 1903 (Cth) s 39B(1A)(a)
Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 cited
Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79 considered
Australian Competition and Consumer Commission v White Top Taxis Ltd (2009) 253 ALR 449 cited
Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10cited
ICI Australia Operations Pty Limited v Trade Practices Commission (1992) 38 FCR 248 cited
J McPhee & Son (Australia) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532 cited
Markarian v The Queen (2005) 228 CLR 357 considered
Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993 referred to
Mornington Inn v Jordan (2008) 168 FCR 383 cited
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 applied
Rural Press Limited v Australian Competition and Consumer Commission (2003) 216 CLR 53 cited
Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 applied
Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 cited
NSD 548 of 2009
BENNETT J
6 novEMBER 2009
SYDNEY
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
NEW SOUTH WALES DISTRICT REGISTRY general division |
NSD 548 of 2009 |
|
AUSTRALIAN COMPETITION & CONSUMER COMMISSION ABN 94 410 483 623 Applicant
|
|
|
AND: |
AUSTRALIAN KARTING ASSOCIATION (NSW) INCORPORATED ABN 80 078 024 223 First Respondent
WAGGA & DISTRICT KART RACING CLUB INCORPORATED ABN 14 665 087 470 Second Respondent
NEWCASTLE KART RACING CLUB INC ABN 40 483 756 148 Third Respondent
MANNING VALLEY KART CLUB INC ABN 95 088 477 464 Fourth Respondent
DUBBO KART CLUB INC ABN 52 906 505 932 Fifth Respondent
RICHARD ERDMANN Sixth Respondent
SIMON WHITING Seventh Respondent
|
|
JUDGE: |
|
|
DATE OF ORDER: |
6 NOVEMBER 2009 |
|
WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. The orders in Annexure A to the reasons be made.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
NEW SOUTH WALES DISTRICT REGISTRY general division |
NSD 548 of 2009 |
|
BETWEEN: |
AUSTRALIAN COMPETITION & CONSUMER COMMISSION ABN 94 410 483 623 Applicant
|
|
AND: |
AUSTRALIAN KARTING ASSOCIATION (NSW) INCORPORATED ABN 80 078 024 223 First Respondent
WAGGA & DISTRICT KART RACING CLUB INCORPORATED ABN 14 665 087 470 Second Respondent
NEWCASTLE KART RACING CLUB INC ABN 40 483 756 148 Third Respondent
MANNING VALLEY KART CLUB INC ABN 95 088 477 464 Fourth Respondent
DUBBO KART CLUB INC ABN 52 906 505 932 Fifth Respondent
RICHARD ERDMANN Sixth Respondent
SIMON WHITING Seventh Respondent
|
|
JUDGE: |
BENNETT J |
|
DATE: |
6 novEMBER 2009 |
|
PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
INTRODUCTION
Kart racing and the AKA
1 The first respondent, the Australian Karting Association (NSW) Incorporated (‘AKA’) is an incorporated association formed by various individual kart racing clubs in New South Wales and the Australian Capital Territory (‘AKA clubs’).
2 Kart racing is a specialised motor sport and has its own licensing regime. There are two types of kart racing – sprint and endurance. Sprint kart racing is predominantly conducted by karts with two stroke engines and endurance races are conducted by karts with four stroke engines. Kart racing is generally conducted on bitumen kart racing circuits (‘kart circuit’). Motorcar racing circuits are generally unsuitable for kart racing due to the length and layout of the circuits.
3 The AKA’s principal activity is to promote, co-ordinate and administer all aspects of the sport of karting in New South Wales. It issues karting licences to individual drivers who belong to AKA clubs. This is the principal source of the AKA’s revenue. The AKA does not own any kart circuit or supply any kart circuit hire services. It has a number of part-time and casual employees.
The AKA clubs and the respondents
4 The AKA clubs include clubs formed around a kart circuit in a particular location and which conduct sprint kart racing series, other karting clubs which do not manage a track but still conduct sprint kart racing series, The Endurance Kart Racing Association (‘TEKA’) and Vintage and Historic Karts Australia. There are approximately 15 kart circuits which are managed by AKA clubs in New South Wales and the Australian Capital Territory. In addition, there are approximately 7 kart circuits owned or managed by non-AKA members.
5 AKA clubs are allowed to conduct 10 race meetings a year, with one meeting as a signature race for the club. Each of the AKA clubs which is formed around a kart circuit in a particular location manages that kart circuit. It will use that kart circuit to conduct its sprint kart racing series and can hire it to other users. Other AKA clubs which do not manage a kart circuit must hire the use of a kart circuit to conduct their sprint kart racing series. TEKA conducts endurance kart races which are held at various kart circuits throughout New South Wales, Queensland and Canberra. To hold these events, TEKA must hire the use of a kart circuit managed by members of AKA or at tracks managed by private operators.
6 The second, third, fourth and fifth respondents (‘respondent clubs’) are clubs that form part of the AKA. Each of the respondent clubs is a sporting club run by volunteers which conducts kart racing events, organises sprint kart racing series and hires out kart circuits located at different regions in New South Wales as the name suggests. The Manning Valley Kart Club Inc hires out the kart circuit located in Wingham.
7 The sixth and seventh respondents were officers of the AKA at the relevant time. At the relevant times, the sixth respondent, Mr Erdmann, was the President of the AKA and also the President of the national Australian Karting Association and a life member of the Wollongong Kart Club. Mr Erdmann has resigned as President of the AKA effective from 12 October 2009 and is also no longer president of the national Australian Karting Association. The seventh respondent, Mr Whiting, was a member of the executive of the AKA, the Vice President of the national Australian Karting Association and a life member of the Wollongong Kart Club. Neither Mr Erdmann nor Mr Whiting received any remuneration for the work they undertook as officers of the AKA, the national Australian Karting Association or the Wollongong Kart Club. Mr Erdmann is an engineer and Mr Whiting is a salesman in industrial lighting.
Non-AKA members
8 There are other bodies not members of the AKA, such as Prokart Pty Limited (‘Prokart’) and the Australian Bracket Racing Association (‘ABRA’), which manage kart circuits or organise kart racing series. Prokart manages a kart circuit in Wollongong called the Wollongong City Raceway and runs approximately 50 kart races each year at venues across New South Wales, ACT and Queensland. ABRA hosts race events at the Butterfly Farm Indy 800 track in Windsor and at other circuits around New South Wales and Canberra. Both of these bodies have hired venues from AKA clubs. There are approximately 20 kart circuits in New South Wales and the Australian Capital Territory suitable for Prokart’s racing events.
9 Prior to July 2008, Prokart had hired kart circuits from different AKA clubs and had held races at each of those kart circuits. On those occasions prior to July 2008, Prokart negotiated hire terms and conditions individually with each kart circuit operator.
10 A venue suitable for kart racing must be a kart circuit. The parties agree that there is a market in the New South Wales and the Australian Capital Territory for the supply of kart circuit hiring services (‘kart circuit market’).
The present proceedings
11 By these proceedings the Australian Competition and Consumer Commission (‘ACCC’) alleges contraventions of s 45 of the Competition Code of New South Wales (‘the Code’) for conduct engaged in between 19 July and 12 August 2008 by the AKA and the respondent clubs. The Commission also alleges that Mr Erdmann and Mr Whiting were knowingly concerned in or party to particular contraventions.
12 Each of the respondents admits the conduct referred to in the declarations contained in the short minutes of order proposed by consent of the parties. The parties made joint submissions in relation to those proposed orders and submitted a statement of agreed facts setting out the conduct which, it is agreed, amounted to the alleged contraventions.
RELEVANT CONDUCT AND ADMITTED CONTRAVENTIONS
The AKA General Meeting on 19 July 2008
13 On 19 July 2008 the AKA held a General Meeting at the Panthers Football Club in Sydney (‘the AGM’). Present in person were representatives of 19 different AKA clubs. The Dubbo Kart Club had a representative in attendance for part of the AGM but that representative left the meeting before the passage of the resolution containing the understanding complained of. There were six further AKA clubs which gave proxies. Of the AKA clubs represented in person, ten clubs managed their own kart circuits.
14 The AGM was chaired by Mr Erdmann. There was a transcript of the AGM.
15 During the AGM, Mr Whiting and Mr Erdmann participated in a discussion amongst the representatives of the AKA clubs in attendance at the AGM about fixing the fees charged by AKA clubs to non-AKA members for the supply of kart circuit hire services. The transcript of the AGM records that this agenda item was first raised by Simon Whiting. Mr Whiting introduced the subject of the fees which AKA clubs had charged non-AKA members for hire of kart circuits, as compared to what Prokart charged Wollongong Kart Club for hire of the Wollongong City Raceway. Mr Whiting stated that:
...if we had a schedule of fees, because different clubs can charge different amounts, I think that would go a long way, so that we have an agreed schedule of fees for the circuits if anyone wants to use them...
Then later:
I think the state office would be, would be quite happy to negotiate on, on your behalf and then forward any monies through without any cost to the club.
16 Mr Erdmann then addressed the meeting:
I would say to you what Simon’s asking is that we do two things. One is to set a minimum fee that anybody is going to charge. That way you are not competing amongst yourselves, right, for this person who continually wants to drive down your price.
And:
if everyone sets a fee and agrees not to go below that figure, right, then at least the club is going to get some recompense for what they’re doing.
And:
I think a place to start is to set a minimum fee, the second thing is to do, anything to do with kart racing on the circuit, right, like outside individuals wanting to race karts on kart circuits, should be handled by the State office...
17 Subsequently, Gayle Murphy, the person representing the Wagga Kart Club at the AGM moved:
We set a fee of $4000.
Ms Murphy subsequently added:
Plus GST if you charge it.
18 Mr Erdmann then accepted further amendments from unidentified representatives.
19 As recorded in the minutes of the meeting, the final form of the motion (‘the Resolution’) was:
All applications/negotiations are to be handled by the State Office for any AKA NSW licenced circuit that is to be used for kart racing. The minimum fee is $4,000 plus GST per day for country clubs and $6,000 plus GST per day for metropolitan clubs and Canberra Kart Racing Club.
20 The transcript records the passage of the motion as follows:
Mr Erdman: All those in favour of the motion? Oppose the motion? Any abstentions to the motion? The motion is carried unanimous.
21 The respondents admit that by passing the Resolution, the AKA and each of the 19 AKA clubs whose representatives were present at the AGM for the passage of the Resolution made a contract or arrangement or arrived at an understanding(‘the Understanding’)containing the following provisions:
(a) Each of the AKA clubs with kart circuits would not offer to supply, and would not supply, kart circuit hire services at a price less than a fee of $4,000 plus GST per day for country clubs and $6,000 plus GST per day for metropolitan clubs (‘Minimum Hire Fee’);and
(b) Any negotiations for the supply of kart circuit hire services would be conducted by the AKA.
22 Two or more parties to the Understanding, including:
(a) Manning Valley Kart Club,
(b) Wagga Kart Club, and
(c) Newcastle Kart Club,
supplied kart circuit hire services, in competition with each other.
23 The parties agree, and I accept, that the provisions of the Understanding:
(a) had the purpose or the effect or were likely to have the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for kart circuit hire services supplied by AKA clubs with kart circuits to customers or prospective customers in New South Wales and the Australian Capital Territory, within the meaning of s 45A of the Code; and
(b) by reason of the matters set out in paragraph 22 and subparagraph 23(a) above, are deemed to have the purpose or the effect, or to be likely to have the effect, of substantially lessening competition in the Kart Circuit Market, for the purposes of s 45(2)(a)(ii) of the Code.
24 By making the Understanding, each of:
(a) the AKA,
(b) Wagga Kart Club,
(c) Newcastle Kart Club, and
(d) Manning Valley Kart Club
admits they have contravened s 45(2)(a)(ii) of the Code.
25 The parties agree, and I accept, that the purpose or a substantial purpose of the provisions of the Understanding was to prevent, restrict or limit one or more of the following:
(a) the supply by AKA clubs with kart circuits of kart circuit hire services to any kart series operator who is not an AKA member on condition that the customer pay at least the Minimum Hire Fee; and
(b) the acquisition by any kart race series operator who is not an AKA member of kart circuit hire services from AKA clubs with kart circuits on condition that the customer pay at least the Minimum Hire Fee.
26 The provision of the Understanding set out in paragraph 21(a) was an exclusionary provision within the meaning of s 4D of the Code.
27 By making the Understanding, each of:
(a) the AKA,
(b) Wagga Kart Club,
(c) Newcastle Kart Club, and
(d) Manning Valley Kart Club
admits they have contravened s 45(2)(a)(i) of the Code.
Giving Effect to the Understanding
A. Lincoln County Raceway
28 On or about 8 August 2008, Mr Pullen of Prokart had a telephone conversation with Karen Newton of the AKA, regarding the availability of the Lincoln County Raceway for hire by Prokart on 23 and 24 August 2008. During that telephone conversation, Ms Newton advised that she would contact Dubbo Kart Club to confirm availability and would forward Prokart an invoice if the Lincoln County Raceway was available for hire.
29 On 8 August 2008, Ms Newton sent an email to Robert Hay and Trevor Jones, the President of Dubbo Kart Club, advising that the AKA had received a request from Prokart for the hire of Lincoln County Raceway on 23 and 24 August 2008 and advising that once the AKA had the confirmation that the Dubbo Kart Club would accept this request, an invoice would be raised to Prokart for $8,800 (being $4,000 plus GST per day).
30 On 11 August 2008, Mr Jones sent an email to Ms Newton of the AKA advising that the Dubbo Kart Club would accept Prokart’s request for the hire of the Lincoln County Raceway on 23 and 24 August 2008 for a fee of $4,050 plus GST per day.
31 On 12 August 2008, Ms Newton sent Mr Pullen an email advising that Dubbo Kart Club had confirmed that the Lincoln County Raceway was available for hire by Prokart for $4,050 plus GST per day.
32 On 12 August 2008, the AKA raised invoice #INV01622 addressed to Prokart for $8,910, and Ms Newton emailed the invoice to Mr Pullen.
33 Prokart did not hire the Lincoln County Raceway on the terms proposed or at all during 2008. On the weekend of 23 and 24 August 2008, Prokart hired the Raleigh International Raceway at Raleigh New South Wales (not owned by an AKA member) for $2,000 plus GST to conduct its race fixture.
34 By engaging in the conduct in paragraphs 28 to 32, the AKA and Dubbo Kart Club each admit they gave effect to the provisions of the Understanding:
(a) in contravention of s 45(2)(b)(i) of the Code; and
(b) in contravention of s 45(2)(b)(ii) of the Code.
B. Manning Valley Kart Circuit
35 Between about 31 July 2008 and 5 August 2008, Mr Pullen of Prokart had a telephone conversation with Steve Fisher, President of the Manning Valley Kart Club, regarding the availability of the Manning Valley Kart Circuit for hire by Prokart on 20 and 21 September 2008. During the telephone conversation, Mr Fisher advised Mr Pullen that the Manning Valley Kart Club was no longer able to negotiate the hire of the Manning Valley Kart Circuit directly with Prokart and advised Mr Pullen to contact the AKA to arrange the hire.
36 On about 5 August 2008, Mr Pullen had a telephone conversation with Ms Newton of the AKA regarding the availability of the Manning Valley Kart Circuit for hire by Prokart on 20 and 21 September 2008. During the telephone conversation, Ms Newton asked Mr Pullen if he was aware of the new fee structure, advised that Prokart would be required to pay all AKA kart circuit hire fees directly to the AKA 30 days in advance of the booking date and advised that there was no scope for negotiation on the new terms.
37 On 5 August 2008, Ms Newton sent an email to Mr Fisher enquiring whether the Manning Valley Kart Circuit was available for hire by Prokart on 20 and 21 September 2008 for a fee of $8,800 (being $4,000 plus GST per day). On 7 August 2008, Mr Fisher sent an email to Ms Newton advising that the Manning Valley Kart Circuit was available for hire by Prokart on those dates for that fee.
38 On about 8 August 2008, Mr Pullen had a telephone conversation with Ms Newton regarding the hire of the Manning Valley Kart Circuit by Prokart on 20 and 21 September 2008. During the conversation, Ms Newton confirmed the availability of the Manning Valley Kart Circuit for hire for $8,800 (including GST) and advised that she would send an invoice for the hire.
39 On 8 August 2008, the AKA raised invoice #INV01608 addressed to Prokart for $8,800, and Ms Newton emailed the invoice to Mr Pullen.
40 Prokart did not hire the Manning Valley Kart Circuit on the terms proposed or at all during 2008. Instead, Prokart conducted the race scheduled for 20 and 21 September 2008 at its own kart circuit, the Wollongong City Raceway.
41 By engaging in the conduct in paragraphs 35 to 39, the AKA and Manning Valley Kart Club each admit they gave effect to the provisions of the Understanding:
(a) in contravention of s 45(2)(b)(i) of the Code; and
(b) in contravention of s 45(2)(b)(ii) of the Code.
C. Newcastle Kart Circuit
42 On or about 8 August 2008, Mr Pullen had a telephone conversation with Ms Newton regarding the availability of the Newcastle Kart Circuit for hire by Prokart on 15 and 16 November 2008.
43 On 8 August 2008, Ms Newton sent an email to Tony D’Annibale, the President of Newcastle Kart Club, enquiring whether the Newcastle Kart Circuit was available for hire by Prokart on 15 and 16 November 2008 and whether the Newcastle Kart Club was willing to accept the fee of $13,200 (being $6,000 plus GST per day).
44 Between 8 August 2008 and 12 August 2008, Newcastle Kart Club advised the AKA that the Newcastle Kart Circuit was available for hire by Prokart on 15 and 16 November 2008 and that it was willing to accept the fee of $13,200.
45 On 12 August 2008, Ms Newton sent an email to Mr Pullen advising that the Newcastle Kart Circuit was available for hire on 15 and 16 November 2008 for a fee of $13,200.00 ($6,600 per day) GST inclusive.
46 On 12 August 2008, the AKA raised invoice #INV01621 addressed to Prokart for $13,200, and Ms Newton emailed the invoice to Prokart.
47 Prokart did not hire the Newcastle Kart Circuit on the terms proposed or at all during 2008. Prokart did not hold a race on the weekend of 15 and 16 November 2008.
48 By engaging in the conduct in paragraphs 42 to 46, the AKA and Newcastle Kart Racing Club each admit they gave effect to the provisions of the Understanding:
(a) in contravention of s 45(2)(b)(i) of the Code; and
(b) in contravention of s 45(2)(b)(ii) of the Code.
Accessorial liability of Mr Erdmann in respect of the making or arriving at the Understanding
49 Mr Erdmann knew at all material times each of the essential matters constituting a contravention of s 45(2)(a)(i) and s 45(2)(a)(ii) of the Code, although he did not know that those matters constituted a contravention of the Code.
50 Mr Erdmann admits that, by his conduct and his involvement in the conduct at the AKA AGM set out at paragraphs 15 to 20 above, he was a person directly or indirectly, knowingly concerned in or a party to, the contraventions by:
(a) the AKA;
(b) Wagga Kart Club;
(c) Newcastle Kart Club;
(d) Manning Valley Kart Club; and
set out at paragraphs 24 and 27 above, within the meaning of ss 75B(1)(c), 76(1)(e) and 80(1)(e) of the Code.
Accessorial liability of Mr Whiting in respect of the making or arriving at the Understanding
51 Mr Whiting knew at all material times each of the essential matters constituting a contravention of s 45(2)(a)(i) and s 45(2)(a)(ii) of the Code, although he did not know that those matters constituted a contravention of the Code.
52 Mr Whiting admits that, by his conduct and his involvement in the conduct at the AKA AGM set out at paragraphs 15 to 20 above, he was a person directly or indirectly, knowingly concerned in or a party to, the contraventions by:
(a) the AKA;
(b) Wagga Kart Club;
(c) Newcastle Kart Club;
(d) Manning Valley Kart Club; and
set out at paragraphs 24 and 27 above, within the meaning of s 75B(1)(c), 76(1)(e) and 80(1)(e) of the Code.
Other facts
53 The respondents have continued to cooperate fully with the ACCC during its investigation and in the course of these proceedings, including by providing information and documents when requested by the ACCC and by making the admissions set out in the statement of agreed facts.
54 The alleged contravening conduct ceased once the AKA became aware of the ACCC investigation and the Resolution made at the AGM was revoked.
55 The conduct in contravention of the Code occurred in the conduct of a meeting of sporting bodies of modest size. The conduct giving rise to the contraventions was not clandestine. Indeed, the meeting was recorded.
56 The first to fifth respondents are run almost exclusively by volunteers without legal training who give their time for no remuneration to assist in the development of the kart racing sport. There is a substantial participation in the sport by children and teenagers.
57 The AKA has three part-time employees. It does not have and has never had in place a trade practices compliance program nor has it provided any officers or those employees with trade practices compliance training.
58 None of the respondents have previously been found to have engaged in any conduct in contravention of the Code or the Trade Practices Act 1974 (Cth) (‘TPA’).
The contraventions
59 The AKA, Wagga Kart Club, Newcastle Kart Club and Manning Valley Kart Club admit that they made an arrangement or arrived at an understanding in contravention of s 45(2)(a)(i) and (ii) of the Code (Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10). The AKA, Dubbo Kart Club, Newcastle Kart Club and Manning Valley Kart Club admit that they gave effect to an arrangement or understanding which contained a provision which:
(a) was an exclusionary provision; and
(b) had the purpose and was likely to have the effect of substantially lessening competition;
in contravention of s 45(2)(b)(i) and 45(2)(b)(ii) of the Code, by the conduct outlined above.
60 Each of Mr Erdmann and Mr Whiting admits that they were knowingly concerned in, or a party to, the making of or the arriving at the Understanding which was in contravention of s 45(2)(a)(i) and 45(2)(a)(ii) of the Code.
61 I am satisfied that in each case those contraventions have been made out.
PENALTY
Legal principles and relevant factors
62 Although the present proceedings concern contraventions of the Code only, the Court has jurisdiction under s 39B(1A)(a) of the Judiciary Act 1903 (Cth) which confers original jurisdiction on the Federal Court in proceedings where the Commonwealth seeks an injunction or declaration (similarly to Australian Competition and Consumer Commission v White Top Taxis Ltd (2009) 253 ALR 449). The principles for assessing penalty under the Code are the same as under the TPA (White Top Taxis at [20] per Finkelstein J).
63 Section 76 of the Code sets out certain matters as relevant matters to which the Court should have regard in determining an appropriate pecuniary penalty. The parties in the joint submissions referred to further relevant factors addressed by French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152-52,153 and expanded upon in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 and J McPhee & Son (Australia) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532. It is uncontroversial as between the parties that the total penalty for related offences ought not to exceed what is proper for the entire contravening conduct involved (Mornington Inn v Jordan (2008) 168 FCR 383 at [42]-[45], [91] per Stone and Buchanan JJ).
64 The parties also recognise that a principal object of a penalty under s 76 is deterrence (NW Frozen Foods). As elaborated, the concept of deterrence is to deter repetition by the contravener and by others who might be tempted to contravene the Act (TPC v CSR at 52,125 per French J), or to deter others who might be tempted to think that contravention would be of benefit and detection would lead merely to a compliance program for the future (NW Frozen Foods at 294–295 per Burchett and Kiefel JJ). The need to achieve general deterrence as well as specific deterrence means that a party’s capacity to pay must be weighed against the need to impose a sum which members of the public will recognise as significant and proportionate to the seriousness of the contravention (Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 at [39] per Goldberg J).
65 It is noteworthy that, in the present case, the participants were totally ignorant that their actions constituted contraventions of the Code and thus they had no intention to contravene the Code. There is no suggestion that any of these parties will re-offend.
66 Bearing in mind the process as set out by the High Court in Markarian v The Queen (2005) 228 CLR 357 for the assessment of criminal sanctions where penalties are not fixed by statute, the ACCC and the AKA jointly submit that a total pecuniary penalty of $10,000 imposed on the AKA is appropriate and within the range of penalties that a Court would order in these circumstances. The parties point out that in considering the proposed agreed penalty, the Court should take into account the fact that a negotiated resolution may be expected to include measures designed to promote, for the future, vigorous competition in the particular market. The imposition of penalty is a matter for the Court (NW Frozen Foods at 290) and the assessment of the appropriate penalty involves exercising a discretion taking into account all relevant factors (Markarian at [27]). However, the parties submit that the Court should not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure except in a clear case (NW Frozen Foods at 291, approved and explained in Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993).
67 Some of the relevant factors that I have taken into account in the present case include:
· the fact that litigation has been avoided;
· it is in the public interest for the Court to make orders on terms agreed between the parties so as to encourage parties to assist the ACCC in its investigations and to achieve negotiated settlements;
· the parties have reached a consensus bringing to bear their different interests in an agreed figure (Australian Competition and Consumer Commission v Jurlique International Pty Ltd (2007) ATPR 42,146 at [109]–[110] per Spender J);
· public awareness of co-operation between the parties;
· whether the proposed figure is within the permissible range in all the circumstances; and
· the views of the ACCC as to the deterrent effect of a proposed penalty in this market.
68 I note also that, as French J said in Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79 at [18], it is not sufficient, in making a consent order, that it is within the power of the Court to make the order nor that the parties have privately agreed as to the proposed order. The Court is not merely giving effect to the wishes of the parties. It is exercising a public function and must have regard to the public interest in doing so.
69 As to the specific matters relevant in the present case, the parties have made submissions on:
· the nature and extent of the contravening conduct;
· the amount of loss or damage caused;
· the circumstances in which the conduct took place;
· similar conduct in the past – whether the contravener has previously been found by the Court to have engaged in similar conduct;
· the size of the contravening company;
· the degree of power the contravening company has, as evidenced by its market share and ease of entry into the market;
· the deliberateness of the contravention and the period over which it extended;
· whether the contravention arose out of conduct of senior management or at a lower level;
· whether the company has a corporate culture conducive to compliance with the Code, as evidenced by compliance programs and corrective measures in response to an acknowledged contravention;
· whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Code in relation to the contravention;
· the financial position of the respondents;
· the deterrent effect of the proposed penalty; and
· totality and parity.
Application of the principles
The nature and extent of the contravening conduct
70 The Understanding was reached at the AGM of the AKA, a sporting association whose members are kart racing associations based in NSW and the ACT. Mr Erdmann and Mr Whiting participated in a discussion amongst the representatives of the AKA clubs in attendance at the AGM, that discussion leading to the motion being proposed. The members voted and passed the Resolution which gave rise to the understanding.
71 The understanding was given effect to on three occasions when Prokart received quotes from the AKA regarding the hire of kart circuits on which to hold its race series.
72 The conduct ceased once the AKA became aware of the ACCC investigation and the possible contravention of the Code, which was less than three months after the Resolution was passed. The Resolution was subsequently revoked.
The amount of loss or damage caused
73 As with many Part IV contraventions, any loss or damage which resulted from the conduct is difficult to quantify.
74 The ACCC submits that on three occasions, Prokart lost the opportunity of hiring, at a rate set competitively, tracks which it felt best met its requirements and that of its customers.
75 Prokart did not ultimately hire any tracks at the rates set by the Understanding.
76 The respondents submit that the loss or damage was nil or, at worst, nominal.
77 There is no evidence of any actual loss or damage suffered.
The circumstances in which the conduct took place
78 The discussion which took place during the AGM prior to the making of the Understanding suggests that the Understanding was probably made by the AKA and its constituent members as a response to the activities of Prokart. Prokart conducts a business arranging kart racing series.
79 The conduct was not clandestine or covert and took place at a meeting of a sporting body of modest size. The corporate respondents are run almost exclusively by persons without legal training, who give their time for no remuneration to assist in the development of the kart racing sport. The individual respondents receive no remuneration for their services.
80 There is substantial participation in the sport by children and teenagers. The imposition of more significant sanctions than those proposed would act as a significant disincentive for others to volunteer their time to sporting and other activities which are of benefit to society.
81 The contravening conduct occurred as a result of ignorance of the prohibitions contained in the Code.
Similar conduct in the past – whether the contravener has previously been found by the Court to have engaged in similar conduct
82 The respondents have not been found to have engaged in any contraventions of the Code in the past.
The size of the contravening company
83 The AKA’s annual turnover, based on total income, for the financial year ending 30 June 2008 was $644,551. Its annual turnover for the financial year ending 30 June 2007 was $614,378. For the financial year ending 30 June 2007, the AKA made a profit of $2,773. For the financial year ending 30 June 2008, the AKA had an operating loss of $10,082. This left it with reserves of $171,141 as at 30 June 2008.
The degree of power the contravening company has, as evidenced by its market share and ease of entry into the market
84 The AKA does not own any kart circuit or supply any kart circuit hire services. The second to fifth respondents each manage and hire out a kart circuit, being four of the twenty two kart circuits available for hire in NSW. Other AKA clubs manage and hire a further 11 tracks. The ACCC submits that, cumulatively, they could exercise significant market power.
The deliberateness of the contravention and the period over which it extended
85 The conduct was deliberate but of only a short duration, essentially only until the AKA became aware that their conduct was likely to be in contravention of the Code. The conduct occurred because the respondents and the other AKA clubs who were party to the Understanding did not know that they were engaging in conduct in breach of the Code.
Whether the contravention arose out of conduct of senior management or at a lower level
86 The contravening conduct occurred with the knowledge of the then President of the AKA, Mr Erdmann.
Whether the company has a corporate culture conducive to compliance with the Code, as evidenced by compliance programs and corrective measures in response to an acknowledged contravention
87 At the time the contravening conduct occurred, the AKA had not given staff trade practices training, nor had it implemented any trade practices compliance program.
Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Code in relation to the contravention
88 The respondents have continued to co-operate fully with the ACCC during its investigation and in the course of these proceedings, including by providing information and documents when requested by the ACCC and by making the admissions set out in the statement of agreed facts. As a result, the penalties submitted to the Court as appropriate are discounted in the order of 50% from the penalties which would have been submitted by the ACCC as appropriate, absent such co-operation.
The financial position of the respondents
89 As noted above, the AKA has sufficient reserves to pay the proposed penalty, although it has limited financial resources.
The deterrent effect of the proposed penalty
90 Given the essentially voluntary nature of the AKA, a penalty of this size, together with the institution of these proceedings is likely to have a significant deterrent effect upon it. It will also make a clear statement to other sporting organisations in a similar position to the AKA.
Totality and parity
91 The ACCC and the AKA jointly submit that the imposition upon the AKA of a single total penalty of $10,000, in respect of all contraventions, is appropriate having regard to the totality principle as outlined above.
Declarations
92 The declarations sought in the proposed orders are sought pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth). The parties submit that the proposed declarations, in a convenient and abbreviated form, sufficiently identify the contravening conduct (Rural Press Limited v Australian Competition and Consumer Commission (2003) 216 CLR 53 at [89]–[90]) and thereby provide context for the pecuniary penalties. Accordingly, the parties submit the declarations operate with the pecuniary penalties to achieve the objective of general deterrence.
93 I am satisfied that it is appropriate to make the declarations in the form sought.
Injunctions
94 Each of the respondents has consented to the imposition of injunctions. The injunctions are available pursuant to s 80 of the Codeand are in the nature of public interest injunctions (ICI Australia Operations Pty Limited v Trade Practices Commission (1992) 38 FCR 248 at 255 to 256 per Lockhart J; Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 at 602 per Gleeson CJ and McHugh J).
95 There is no suggestion that the respondents are likely to engage in the contravening conduct again. However, the public interest may warrant the making of an injunction notwithstanding that the contravener is not likely to engage in that contravening conduct again. Section 80(4) of the Code expressly provides that the Court’s power to grant an injunction may be exercised in such circumstances. I am satisfied that similar organisations, despite the fact that they are not being conducted primarily for the purpose of profit and the fact that the participants are volunteers, need to be aware of the need to comply with the Code. I am satisfied that the granting of the injunctions in addition to the declarations reinforces that message.
Trade practices compliance program
96 The parties seek orders pursuant to s 86C of the Code or, alternatively, pursuant to s 80 of the Code that the AKA implement a trade practices compliance and training program and send a letter notifying its members of the orders made by the Court in these proceedings. The parties point out that the contraventions occurred because the respondents and the other AKA clubs which were party to the Understanding did not know that they were engaging in conduct in breach of the Code. The orders are sought, it is said, to educate the AKA’s members, officers and employees about their obligations under the Code and about the outcome of litigation. As such, the proposed program will raise awareness of the type of conduct that may contravene the Code and is therefore consistent with the purpose of a probation order under s 86C of the Code as defined in that section.
97 On one hand, it seems to me somewhat onerous for a voluntary organisation of the nature of the AKA with three part-time employees and the respondent clubs to require them to implement a compliance program. Certainly it would be totally inappropriate to require them to implement the kind of program that would be appropriate for a large organisation or a large commercial enterprise. However, I see the force in the argument that it is necessary for clubs or organisations such as these not to contravene the Code in ignorance. While in the present case little damage was done, that may not always be the case when understandings are made and implemented in contravention of the Code. Accordingly it is, in my opinion, appropriate to make the orders sought in respect of the trade practices compliance program.
Pecuniary Penalty
98 The imposition of a financial penalty is a matter for the Court, whether or not the parties propose an agreed figure (Mobil Oil). I am aware that the AKA can pay the proposed penalty of $10,000 without going out of business or seriously impeding its activities. I am also aware of the strictures as enunciated in the cases of not substituting an amount by way of penalties simply because another sum comes to mind. I am mindful of the fact that the AKA has agreed to pay a contribution to the ACCC’s costs of the proceedings in an amount to be agreed. I am conscious of the fact that this is a voluntary organisation conducting kart racing in the interests of an interested section of the public. I have taken into account the various factors elucidated in Mobil Oil regarding the public interest in the settlement of litigation. Further, I take into account the following:
· Engagement in the conduct was innocent.
· The evidence on which the Commission relied to establish the contravention was evidence recorded by the AKA of its AGM proceedings.
· There is no suggestion that there is any need to deter the respondents by way of pecuniary penalty from any further contravention.
· No submission has been made as to why a pecuniary penalty is necessary, in addition to the declarations and injunctions sought and agreed to, which themselves were advanced as necessary for, inter alia, general deterrence.
· While the AKA has financial resources able to make the proposed payment, the proposed penalty constitutes a reasonably significant percentage of those resources.
· The respondents are represented by counsel and have received legal advice.
99 I am satisfied that the agreed amount of $10,000 is within the permissible range in the present circumstances.
ORDERS
100 I am satisfied that it is appropriate to make the orders as proposed by consent. I will make the orders in Annexure A to these reasons, which, apart from one proposed declaration as to which there was no supporting evidence in the statement of agreed facts, accord with the orders proposed by the parties.
|
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. |
Associate:
Dated: 6 November 2009
|
Counsel for the Applicant: |
Mr D Godwin |
|
|
|
|
Solicitor for the Applicant: |
Corrs Chambers Westgarth |
|
|
|
|
Counsel for the Respondents: |
Mr J Stephenson |
|
|
|
|
Solicitor for the Respondents: |
Simpson & Partners Solicitors Pty Limited |
|
Date of Hearing: |
24 September 2009 |
|
|
|
|
Date of Judgment: |
6 November 2009 |
Annexure A
THE COURT DECLARES THAT:
1. Each of the first respondent ("the AKA"), second respondent ("Wagga Kart Club"), the third respondent ("Newcastle Kart Club") and the fourth respondent ("Manning Valley Kart Club"), by making a contract or arrangement or arriving at an understanding containing provisions that:
(a) each of the AKA clubs with bitumen kart circuits ("Kart Circuits") would not offer to supply, and would not supply Kart Circuit hire services at a price less than $4,000 plus GST per day for country clubs and $6,000 per GST per day for metropolitan clubs ("Minimum Hire Fee"); and
(b) any negotiations for the supply of Kart Circuit hire services would be conducted by the AKA;
made a contract or arrangement or arrived at an understanding ("Kart Circuit Hire Understanding") that:
(c) had the purpose or the effect, or were likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for Kart Circuit hire services supplied by AKA clubs with Kart Circuits in competition with each other to customers or prospective customers in New South Wales and the Australian Capital Territory within the meaning of section 45A of the Competition Code of New South Wales ("the Code"); and
(d) by reason of the matters alleged in subparagraph (c) above, is deemed to have the purpose or effect, or to be likely to have the effect, of substantially lessening competition in the market in New South Wales and the Australian Capital Territory for the supply of Kart Circuit hiring services within the meaning of section 4E of the Code ("Kart Circuit Market"), for the purposes of section 45(2)(a)(ii) of the Code; and
thereby engaged in a contravention of section 45(2)(a)(ii) of the Code.
2. Each of the AKA, Wagga Kart Club, Newcastle Kart Club and Manning Valley Kart Club, by making or arriving at the Kart Circuit Hire Understanding in circumstances where two or more parties to the Kart Circuit Hire Understanding supplied Kart Circuit hire services in competition with each other, made a contract or arrangement or arrived at an understanding which contained a provision, the purpose or a substantial purpose of which was to prevent, restrict or limit one of more of the following:
(a) the supply by AKA clubs with Kart Circuits of Kart Circuit hire services to any kart series operator who is not an AKA member on condition that the customer pay at least the Minimum Hire Fee; and
(b) the acquisition by any kart series operator who is not an AKA member of Kart Circuit hire services from AKA clubs with Kart Circuits on condition that the customer shall pay at least the Minimum Hire Fee;
being an exclusionary provision within the meaning of section 4D of the Code, and thereby engaged in conduct in contravention of section 45(2)(a)(i) of the Code.
3. The fifth respondent ("Dubbo Kart Club"), by its conduct in corresponding with the AKA regarding the hire of the Lincoln County Raceway by Prokart for the Minimum Hire Fee or a higher fee, gave effect to the provisions of the Kart Circuit Hire Understanding as characterised in declarations 1 and 2 above and thereby:
(a) engaged in conduct in contravention of section 45(2)(b)(ii) of the Code; and
(b) engaged in conduct in contravention of section 45(2)(b)(i) of the Code.
4. The AKA, by its conduct in liaising with Prokart and Dubbo Kart Club regarding the hire of the Lincoln County Raceway for the Minimum Hire Fee or a higher fee, gave effect to the provisions of the Kart Circuit Hire Understanding as characterised in declarations 1 and 2 above and thereby::
(a) engaged in conduct in contravention of section 45(2)(b)(ii) of the Code; and
(b) engaged in conduct in contravention of section 45(2)(b)(i) of the Code.
5. Manning Valley Kart Club, by its conduct in:
(a) advising Prokart that any negotiations for the supply of Kart Circuit hire services would be conducted by the AKA; and
(b) liaising with the AKA regarding the hire of the Manning Valley Kart Circuit by Prokart for the Minimum Hire Fee;
gave effect to the provisions of the Kart Circuit Hire Understanding as characterised in declarations 1 and 2 above and thereby:
(c) engaged in conduct in contravention of section 45(2)(b)(ii) of the Code; and
(d) engaged in conduct in contravention of section 45(2)(b)(i) of the Code.
6. The AKA, by its conduct in liaising with Prokart and Manning Valley Kart Club regarding the hire of the Manning Valley Kart Circuit for the Minimum Hire Fee, gave effect to the provisions of the Kart Circuit Hire Understanding as characterised in declarations 1 and 2 above and thereby:
(a) engaged in conduct in contravention of section 45(2)(b)(ii) of the Code; and
(b) engaged in conduct in contravention of section 45(2)(b)(i) of the Code.
7. Newcastle Kart Club, by its conduct in liaising with the AKA regarding the hire of the Newcastle Kart Circuit by Prokart for the Minimum Hire Fee, gave effect to the provisions of the Kart Circuit Hire Understanding as characterised in declarations 1 and 2 above and thereby:
(a) engaged in conduct in contravention of section 45(2)(b)(ii) of the Code; and
(b) engaged in conduct in contravention of section 45(2)(b)(i) of the Code.
8. The AKA, by its conduct in liaising with Prokart and Newcastle Kart Club regarding the hire of the Newcastle Kart Circuit, gave effect to the provisions of the Kart Circuit Hire Understanding as characterised in declarations 1 and 2 above and thereby:
(a) engaged in conduct in contravention of section 45(2)(b)(ii) of the Code; and
(b) engaged in conduct in contravention of section 45(2)(b)(i) of the Code.
9. The sixth respondent ("Mr Erdmann") by his involvement in the making of or arriving at the Kart Circuit Hire Understanding with the knowledge of the essential elements of the contraventions of section 45(2)(a)(ii) and section 45(2)(a)(i) of the Code referred to in declarations 1 and 2 above, was a person directly or indirectly knowingly concerned in, or party to, those contraventions, which constitutes conduct of the kind referred to in section 75B(1)(c) and/or section 80(1)(e) of the Code.
10. The seventh respondent ("Mr Whiting") by his involvement in the making of or arriving at the Kart Circuit Hire Understanding with the knowledge of the essential elements of the contraventions of section 45(2)(a)(ii) and section 45(2)(a)(i) of the Code referred to in declarations 1 and 2 above, was a person directly or indirectly knowingly concerned in, or party to, those contraventions, which constitutes conduct of the kind referred to in section 75B(1)(c) and/or section 80(1)(e) of the Code.
AND, the Court orders that:
11. The AKA pay to the Commonwealth a total pecuniary penalty of $10,000 within three months of the date of this order.
12. That the AKA be permanently restrained whether by itself, its servants or agents from:
(a) making, or arriving at;
(b) giving effect to; or
(c) attempting to make or arrive at, or give effect to;
any contract, arrangement or understanding with any two or more AKA members in Australia which contains a provision that:
(d) has the purpose or the effect, or is likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for Kart Circuit hire services supplied by AKA clubs with Kart Circuits to customers or prospective customers in New South Wales and the Australian Capital Territory; or
(e) has the purpose of preventing or restricting one or more of the following:
(i) the supply by AKA clubs with Kart Circuits of Kart Circuit hire services to any kart race series operator who is not an AKA member on condition that the customer pay at least a minimum hire fee; or
(ii) the acquisition by any kart race series operator who is not an AKA member of Kart Circuit hire services from AKA clubs with Kart Circuits by the imposition of a condition that the customer pay at least a minimum hire fee.
13. An injunction permanently restraining each of Wagga Kart Club, Newcastle Kart Club, Manning Valley Kart Club, Dubbo Kart Club whether by themselves, their servants or agents from:
(a) making, or arriving at;
(b) giving effect to; or
(c) attempting to make or arrive at, or give effect to;
any contract, arrangement or understanding with any other AKA member in Australia which contains a provision that:
(d) has purpose or the effect, or is likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for Kart Circuit hire services supplied by AKA clubs with Kart Circuits to customers or prospective customers in New South Wales and the Australian Capital Territory; or
(e) has the purpose of preventing or restricting one or more of the following:
(i) the supply by AKA clubs with Kart Circuits of Kart Circuit hire services to any kart race series operator who is not an AKA member by the imposition of a condition that the customer pay at least a minimum hire fee; or
(ii) the acquisition by any kart race series operator who is not an AKA member of Kart Circuit hire services from AKA clubs with Kart Circuits by the imposition of a condition that the customer pay at least a minimum hire fee.
14. An injunction permanently restraining each of Mr Erdmann and Mr Whiting whether by themselves, their servants or agents from:
(a) attempting to induce the making, or arriving at, or the giving effect to; or
(b) being knowingly concerned in, or party to, the making or arriving at, or giving effect to;
any contract, arrangement or understanding with any two or more AKA members in Australia which contains a provision that:
(c) has purpose or the effect, or is likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for Kart Circuit hire services supplied by AKA clubs with Kart Circuits to customers or prospective customers in New South Wales and the Australian Capital Territory; or
(d) has the purpose of preventing or restricting one or more of the following:
(i) the supply by AKA clubs with Kart Circuits of Kart Circuit hire services to any kart race series operator who is not an AKA member by the imposition of a condition that the customer pay at least a minimum hire fee; or
(ii) the acquisition by any kart race series operator who is not an AKA member of Kart Circuit hire services from AKA clubs with Kart Circuits by the imposition of a condition that the customer pay at least a minimum hire fee.
15. The AKA shall:
(a) within three months of the date of this order, establish an education training and trade practices compliance program ("Compliance Program") for officers and employees of its business, which is designed to instil an awareness of the prohibitions contained in Part IV of the Code (including section 45 and section 45A) in relation to the contravening conduct in this proceeding or any similar or related conduct;
b) within one month of the date of this order, appoint a legal adviser to advise the AKA as to the content of the Compliance Program;
(c) implement and administer the Compliance Program for a period of three years from the date it is established;
(d) within three months of the date of this order, prepare a written report to the applicant ("the ACCC") on the content of the Compliance Program; and
(e) provide a further report to the ACCC on the implementation and administration of the Compliance Program at the conclusion of each period of 12 months during which the Compliance Program is being implemented and administered.
16. The AKA shall within three months of the date of this order, cause to be sent to each member of the AKA a letter substantially in the form of Attachment 1.
17. The AKA to pay a contribution to the ACCC's costs of the proceedings in an amount as agreed between the parties.
ATTACHMENT 1
Letter to AKA members
[To be placed on the AKA letterhead]
[Date]
Dear Sir/Madam
Anti-competitive arrangement by the AKA
Following civil proceedings instituted by the Australian Competition and Consumer Commission ("ACCC"), the Federal Court of Australia has found that the Australian Karting Association (NSW) Incorporated ("the AKA") and three AKA members made an anti-competitive arrangement at the annual general meeting of the AKA which was held on 19 July 2008.
The Court has declared that the AKA engaged in anti-competitive conduct (contravening the Competition Code of New South Wales ("the Competition Code")) by making an arrangement:
· to fix the minimum price for the hire of kart circuits by AKA clubs (which is said to substantially lessen competition); and
· to prevent, restrict or limit the hire of kart circuits by AKA clubs to non-AKA members by imposing a condition that the non-AKA members pay at least the minimum price (which is an exclusionary provision);
and later giving effect to the above arrangement.
The Competition Code has the same provisions as the Trade Practices Act 1974 (Cth), but applies to individuals and non-trading associations such as AKA clubs.
One of the Court's orders is that the AKA must write to each member to notify them of the outcome of these proceedings and to inform them of the illegality of making and giving effect to arrangements which substantially lessen competition or contain an exclusionary provision.
The AKA has been ordered to pay a penalty of $10,000 and to pay a contribution to the ACCC's costs. The Court has also granted injunctions restraining the AKA from making arrangements of this kind in the future and has ordered that the AKA establish a trade practices compliance program.
If as an AKA member you:
· agree with other AKA members to a minimum or set price for the hire of kart circuits;
· agree with other AKA members to prevent, restrict or limit the hire of kart circuits by AKA clubs to a particular class of persons on particular conditions; or
· give effect to an agreement set out above,
you may be in breach of the Competition Code and may be liable to pay fines of up to $10,000,000 for a company or $500,000 for an individual, as well as damages for any loss that is caused.
You can obtain further information about the ACCC's proceedings against the AKA and the Trade Practices Act 1974 / Competition Code from the ACCC website at www.accc.gov.au.
Yours sincerely
President
