#shitjudgessay

On these facts, there was a clear contravention of s 48. However, the penalties imposed were very low. An examination of the transcript of the hearing below as well as the reasons for judgment provides the explanation for this. They show that there were two reasons motivating the judge viz, his view of s 48 and his opinion about the impact of higher penalties.

As regards s 48 (perhaps even as regards the whole of Part IV) the judge during the hearing said this:

‘I’m not such an ardent disciple of competition as an economic model that it seems to me to be necessary to go knocking out of the ring everyone who does something slightly anti-competitive every so often. I happen to believe personally that competition is not necessarily a great economic model but I know that it’s the one that the Act adopts and the one that I have to apply.’

Notwithstanding the judge’s opinion, s 48 was indeed enacted on the premise that competition is important in the distribution of goods and that vertical price fixing, or resale price maintenance (supplier regulation of the price at which goods are resold), eliminates that competition.

The case as I have described it is not particularly unusual, but there were certainly remarkable aspects about it. One is the character and background of Foch, De Varda and De Varda’s witnesses.

Mr Foch, who was of French descent, held himself out to be a descendant of Marshal Foch, of World War I fame. He had a history of dealings in arms and other unusual commodities in several countries and with organisations that could fairly be described as shady. He apparently had had transactions with Colonel Rambuka at the time of the first coup in Fiji, was said to have been involved in transactions with the OAS, a secret French military organisation, and with Sandline, a London-based supplier of mercenaries and arms to various entities […]

De Varda described himself as a writer, an artist and a businessman. He has had many occupations. He grew up in Egypt and in 1962 undertook a course of study in biochemistry at Cairo University. He said that before the age of 20 he had invented a rocket which he had launched in Egypt and this had resulted in a lot of publicity in the local newspapers, which he offered to produce. He said that he had conducted research into cancer and Mrs Indira Ghandi had offered him land and funding to build a cancer hospital in India. Articles in Indian newspapers about this matter were put into evidence. He said that he had discovered a cure for baldness but had lost the formula. He appears for many years to have been a dealer in gold bullion and gemstones. He kept gold and gemstones in various safes over which he had control. He said that he was writing a literary work which was extremely confidential and which in some way was concerned with religious matters, the details of which he refused to disclose.

In light of what is now admitted to be the facts, it may be doubted that this John Le Carré defence had any prospects of success.

The corporate culture of Visy in relation to its obligations under the Trade Practices Act was non-existent. None of the most senior people hesitated for a moment before embarking on obviously unlawful conduct. There was in evidence a Visy document entitled ‘Trade Practices Compliance Manual’ dated February 1998. It was signed by Mr Pratt. On the front cover it is said:

‘This is an important document. It is essential that it be read and understood by you. Visy Industries requires strict compliance with its policy on the Trade Practices Act.’

The document includes the stern warning that price fixing and market sharing are ‘strictly prohibited’ and that readers of the document ‘must never make (such) arrangements with a competitor’. Further, it is said Visy personnel:

‘Should avoid all contact with competitors or their employees other than contact approved by senior management or Visy Industries’ Legal Counsel. All necessary contact with competitors should be conducted in formal settings.’

I doubt that Westerfolds Park and the Cherry Hill Tavern could be regarded as formal settings. The Visy Trade Practices Compliance Manual might have been written in Sanskrit for all the notice anybody took of it.