The Australian Industries Preservation Act 1906–1950 in a State Supreme Court
| Author | D. J. Rose |
| DOI | 10.1177/0067205X6600200105 |
| Published date | 01 March 1966 |
| Date | 01 March 1966 |
| Subject Matter | Comment |
COMMENT
THE
AUSTRALIAN INDUSTRIES PRESERVATION ACT
1906-1950
IN
ASTATE SUPREME
COURT
The judgment by Smith J. in the Supreme Court
of
Victoria in Bourke
Appliances Pty
Ltd
v.
Wonder1was given
on
10
November,
1961,
but
was
not
reported until it was included in the Victorian Reports for 1965,
no
doubt because
of
the interest that had been generated in the Aus-
tralian Industries Preservation
Act
1906-1950 by the proceedings in the
High Court in Redfern
v.
Dunlop Rubber Australia
Ltd
2•Although its
importance has been reduced by that High Court decision and by the
enactment
of
the Trade Practices
Act
1965
3,it still merits consideration
on
several points.
Bourke Appliances Pty
Ltd
v.
Wonder was an action in the Supreme
Court
of
Victoria for damages for an alleged conspiracy by the defen-
dants.4The plaintiff carried on business as adiscount house, selling
electrical appliances through social clubs and similar organisations.
The defendants were other retailers
of
electrical appliances and were
members
of
atrade association (the Radio Electrical and Television
Retailers' Association
of
Victoria) which resolved in August, 1960,
not
to
buy any goods produced by two large interstate manufacturers who
had
supplied the plaintiff and other discount houses. The plaintiff
alleged that, as aresult
of
the defendant's activities, it was unable
to
obtain supplies.
Smith J. first considered the claim that, quite apart from the Australian
Industries Preservation
Act
1906-1950, the defendants' combination was
an
actionable conspiracy
on
the common law ground
that
the concerted
threats which they made
to
the plaintiff's suppliers with the object
of
stopping its supplies were without lawful justification. Smith J. held
that
the action failed on this basis since the 'predominant purpose' 5
of
the defendants was to protect their own legitimate trade interests against
harm
arising from social club trading and its consequences which (he
found) included the overthrowing
of
the price structure in the retail
trade and the splitting
of
the trade association.6
1[1965] V.R. 511.
2(1964) 110 C.L.R. 194.
3
At
the date
of
writing this comment, the former Act is still
in
force,
but
when
section 4(1.)
of
the Trade Practices
Act
1965 comes into operation (on aday
to
be
fixed
by Proclamation) it will restrict
the
former Act
to
overseas trade
and
commerce
by
way
of
the carriage
of
goods by sea. Clause 5
of
the
Trade Practices Bill 1966
to
amend
the
Trade Practices
Act
1965 seeks
to
repeal
the
Australian Industries Preservation
Act
entirely
but
with
no
retrospective effect.
4
If
it
had
been
an
action for treble damages
under
section
11
(1.)
of
the Australian
Industries Preservation
Act
1906-1950, proceedings would have been in the High Court.
S
He
referred (inter alia)
to
Ware and
de
Freville
Ltd
v.
Motor Trade Association
[1921] 3K.B. 40,
and
Crofter Hand Woven Harris Tweed
Co.
Ltd
v.
Veitch
[1942]
A.C.435.
6[1965] V.R. 511,516.
95
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