AUSTRALIAN COMPETITION TRIBUNAL

 

NESTLÉ AUSTRALIA LTD [2007] ACompT 2

 

 

File No 7 of 2006

 

RE:     APPLICATION by NESTLÉ AUSTRALIA LTD PURSUANT TO SECTION 101A FOR REVIEW OF AUSTRALIAN COMPETITION AND CONSUMER COMMISSION NOTICE UNDER SECTION 93(3) REGARDING NESTLÉ AUSTRALIA LTD’S EXCLUSIVE DEALING NOTIFICATION N31488

 

BY:      NESTLÉ AUSTRALIA LTD (ABN 77 000 011 316)

            Applicant

  

FRENCH J (Deputy President)

17 JANUARY 2007

PERTH


 

 

AUSTRALIAN COMPETITION TRIBUNAL

 No 7 OF 2006

 

 

RE:                                         APPLICATION BY NESTLÉ AUSTRALIA LTD PURSUANT TO SECTION 101A FOR REVIEW OF AUSTRALIAN COMPETITION AND CONSUMER COMMISSION NOTICE UNDER SECTION 93(3) REGARDING NESTLÉ AUSTRALIA LTD’S EXCLUSIVE DEALING NOTIFICATION N31488

 

 

BY:                                          NESTLÉ AUSTRALIA LTD (ABN 77 000 011 316)

                                                Applicant

  

THE TRIBUNAL:

FRENCH J (Deputy President)

DATE:

17 JANUARY 2007

WHERE MADE:

PERTH

  

THE TRIBUNAL RULES THAT:

1.         The Applicant is hereby granted leave to withdraw its Application for Review No 7 of 2006 filed with the Australian Competition Tribunal (the Tribunal) on 24 August 2006.

2.         The Application for Review No 7 of 2006 is hereby treated as withdrawn.

3.         The date for return or destruction of confidential documents for the purposes of paragraph 5 of the Confidentiality Undertaking attached to the Tribunal’s orders of 2 November 2006 is 7 February 2007.

4.         ALDI and the Applicant will, by 7 February 2007, destroy or return to the party claiming confidentiality any confidential documents that were provided to them by the Australian Competition and Consumer Commission (the Commission) in accordance with direction 4 of the Tribunal’s amended directions dated 15 September 2006, as well as all copies, extracts, notes or other documents recording the contents of those confidential documents or any information contained in them.

5.         The Commission will, by 7 February 2007, destroy or return to the producing party all confidential documents produced in response to a summons issued by the Tribunal.

6.         For the purposes of giving effect to orders 4 and 5 and the undertaking in paragraph 5 of the Confidentiality undertaking attached to the Tribunal’s orders of 2 November 2006, those parties that elect to destroy confidential documents in their possession shall, by 7 February 2007, confirm to the producing party in writing that such documents have been destroyed.

 

 

 

AUSTRALIAN COMPETITION TRIBUNAL

No 7 of 2006

 

RE:

APPLICATION BY NESTLÉ AUSTRALIA LTD PURSUANT TO SECTION 101A FOR REVIEW OF AUSTRALIAN COMPETITION AND CONSUMER COMMISSION NOTICE UNDER SECTION 93(3) REGARDING NESTLÉ AUSTRALIA LTD’S EXCLUSIVE DEALING NOTIFICATION N31488

 

BY:

NESTLÉ AUSTRALIA LTD (ABN 77 000 011 316)

Applicant

 

 

THE TRIBUNAL:

FRENCH J (Deputy President)

DATE:

17 JANUARY 2007

PLACE:

PERTH


REASONS FOR RULING ON APPLICATION FOR LEAVE TO WITHDRAW

1                     Nestlé Australia Ltd (Nestlé Australia) is an Australian subsidiary of a Swiss Company Nestlé SA.  It manufactures food and beverage products including coffee under the name Nescafé BLEND 43.  The coffee is said to be manufactured in Queensland.  Nestlé Australia supplies the coffee to Australian grocery wholesalers and retailers including the ALDI retail grocery chain. 

2                     According to Nestlé Australia ALDI began selling Nestlé branded instant coffee products which it had obtained from overseas’ suppliers.  Nestlé Australia says that ALDI sold these coffees under the names Nescafé Classic Delux and Nescafé Matinal.  Following complaints from consumers about the taste of the overseas brands, Nestlé Australia wrote to ALDI requiring that it take steps to differentiate NESCAFÉ BLEND 43 from the overseas Nescafé brands.  ALDI refused to take the steps that Nestlé Australia demanded. 

3                     Nestlé Australia lodged an Exclusive Dealing Notification N31488 with the Australian Competition and Consumer Commission (ACCC) on 2 December 2005.  By the notified conduct Nestlé Australia would require that, if ALDI sought to acquire, from it, NESCAFÉ BLEND 43, ALDI would undertake reasonable differentiation of that product from the overseas Nescafé brands.  Nestlé Australia says that the conduct notified did not seek to stop and would not stop the importation of the overseas Nescafé brands.

4                     By a draft notice dated 3 April 2006 and a final notice dated 3 August 2006 the ACCC determined to revoke the notification.

5                     On 24 August 2006 Nestlé Australia filed an application in the Australian Competition Tribunal (the Tribunal) for a review of the ACCC’s decision to give notice revoking the notification.  Programming directions were made by Goldberg J as President of the Tribunal on 15 September 2006 and affidavits and other materials were subsequently filed pursuant to those directions. 

6                     The matter was set down for hearing by the Tribunal initially comprising Gyles J (Deputy President) sitting with Ms M Starrs and Mr Brian Keane commencing 5 March 2007.  Subsequently, because of Federal Court commitments of Gyles J, the Tribunal was reconstituted to comprise myself as a Deputy President, sitting with Ms Starrs and Mr Keane.  The hearing was listed to commence 26 February 2007.

7                     On 15 January 2007 Mallesons Stephen Jaques, the solicitors acting for Nestlé Australia, wrote to the Registrar of the Tribunal requesting leave to withdraw its application for review.  In that letter the solicitors advised that ALDI and Nestlé Australia had come to a mutually acceptable arrangement resolving the issues at the centre of the notified conduct.  ALDI and the ACCC do not oppose the grant of leave to withdraw the application being granted by the Tribunal.  The letter so stating was endorsed by the solicitors for ALDI and for the ACCC.  Short minutes of an order signed by representatives for each of the parties have been provided.  In my opinion there is no public interest or other consideration weighing against the grant of leave to withdraw.  The orders sought relate to matters of procedure and can be made by the Tribunal constituted by a presidential member (s 103, Trade Practices Act 1974 (Cth)).  I therefore propose to make the orders sought, subject to minor editorial variations.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Ruling herein of the Honourable Justice French.


Associate:

Dated:              17 January 2007



Solicitor for the Applicant:

Mallesons Stephen Jaques



Solicitor for ALDI:

Baker & McKenzie


Solicitor for Australian Competition and Consumer Commission:



Australian Government Solicitor

Date of Application for Leave to Withdraw :

15 January 2007



Date of Ruling:

17 January 2007