#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.

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.