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TPC v David Jones (Aust) Pty Ltd

(1986) 13 FCR 446



There was a price war between retailers of Sheridan Manchester

The director of a Sheridan distributor (Zellen) organised a meeting of major retailers to discuss discounting

Z distributed a price list at this meeting

Soon after the meeting prices were lifted amongst retailers in accordance with the list (although the new prices were not identical)

Retailers did not give evidence at trial


Held (Fisher J)

Elements of understanding:

  • Necessity for communication between parties
  • Each party raises expectation in mind of other party
  • One or both parties accept obligation qua the other
    (no need for mutuality of obligations)

There was direct evidence of incentive and opportunity for ‘meeting of the minds’.  But, there was no direct evidence that an understanding was arrived at by parties at the meeting.

However …

  • Circumstantial evidence can be sufficient to establish an understanding
  • ‘Community of purpose may be proved by independent facts, but it need not be … there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, …’: Isaacs J (R v Associated Northern Collieries)

Applied to the facts

There was significant circumstantial evidence:

The market for Sheridan had been severely disrupted by discounting

All parties accepted invitation to attend meeting

No oral evidence was given by the respondents to explain their behaviour – this was ‘a very important factor’

That failure ‘encourages the tribunal to feel that it is less unsafe to make the requisite finding …’

‘This inference is particularly appropriately drawn when the facts are peculiarly within the knowledge of the silent party’

Similar pricing structures were adopted – significant uniformity compared with previous practice

These acts were of ‘such concurrence of “time, character, direction and result” that they encourage the inference the acts were the outcome of pre-concert’


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