Competition Law Cases

ACCC v Cascade Coal Pty Ltd [2019] FCAFC 154 (4 September 2019)
(Justices Jagot, Beach and Bromwich)
Cartel conduct - meaning of ‘in competition’

The Court dismissed the ACCC’s appeal; focus was on whether the parties were ‘in competition’ at the relevant time. The Court concluded the trial judge did not err in finding that they were not.

Appeal from ACCC v Cascade Coal Pty Ltd (No 3) [2018] FCA 1019 ➤

CDPP v Kawasaki Kisen Kaisha Ltd [2019] FCA 1170 (2 August 2019)
(Justice Wigney)
Criminal cartel - sentencing

Guilty plea. Related to the previous NYK cartel and subsequent WWO cartel. The charges alleged cartel conduct relating to the international shipping of cars, trucks, and buses to Australia between July 2009 and September 2012. A fine of $34.5 million was imposed for giving effect to a cartel provision (ACCC media release on K-line).

ACCC v P.T. Garuda Indonesia Ltd (Remedies) [2019] FCA 786 (30 May 2019)
(Justice Perram)
Penalties (cartels - price fixing)

Penalty judgment in relation to Garuda: $19m imposed. The ACCC claimed that Air NZ and Garuda had been involved in price fixing in relation to certain fuel surcharges. The trial judge held that there was no 'market in Australia' and dismissed the case. The ACCC appealed (press release). On 21 March 2016, the Full Federal Court, by majority, upheld the appeals. Air NZ and Garuda applied for, and were granted, special leave to appeal. The High Court unanimously dismissed both appeals.

High Court (appeal dismissed) Air New Zealand Ltd v ACCC; PT Garuda Indonesia Ltd v ACCC [2017] HCA 21 (14 June 2017)
Full Court (appeal upheld) ACCC v P T Garuda Indonesia Ltd [2016] FCAFC 42 (21 March 2016)
Trial ACCC v Air New Zealand Limited [2014] FCA 1157 (31 October 2014)

Penalty (Air NZ) ACCC v Air New Zealand Limited (No 15) [2018] FCA 1166 (27 June 2018)
Penalty (Garuda) ACCC v P.T. Garuda Indonesia Ltd (Remedies) [2019] FCA 786 (30 May 2019)

ACCC v Colgate-Palmolive Pty Ltd [2019] FCAFC 83 ➤ (24 May 2019)
(Justices Middleton, Perram and Bromwich)
Cartels (price fixing)

The ACCC alleged an arrangement or understanding with other suppliers of ultra concentrated laundry detergent containing exclusionary provisions or provisions having the purpose or likely effect of lessening competition in the market for laundry detergent in Australia. Consideration of whether agreement or mere oligopolistic behaviour. This was an appeal from the contested proceedings against Cussons in which the trial judge held that the applicant had not demonstrated that the respondent had entered into the alleged arrangement or understanding. The appeal was dismissed.

Appeal from ACCC v Colgate-Palmolive Pty Ltd (No 4) [2017] FCA 1590 ➤ (22 December 2017)

See also ACCC v Colgate-Palmolive Pty Ltd (No 3) [2016] FCA 676 ➤ (3 June 2016) (Woolworths admission and pecuniary penalties of $9m)
See also ACCC v Colgate-Palmolive Pty Ltd (No 2) [2016] FCA 528 ➤ (16 May 2026) (Colgate admission and penalties of $18m)

ACCC v Pacific National Pty Limited (No 2) [2019] FCA 669 (15 May 2019)
(Justice Beach) 
Mergers - anti-competitive agreements

Vertical acquisition involving Queensland rail terminal (s 50 CCA). The ACCC alleged Pacific National’s acquisition of the Acacia Ridge terminal from Aurizon would substantially lessen competition in breach of s 50 and further that a ‘terminal services subcontract’ between Pacific National and Aurizon would substantially lessen competition in contravention of s 45. No breach found in relation to s 45 or s 50, but Justice Beach observed that if Pacific National had not provided undertakings he would have found a breach.

Appeal to FCAFC (dismissed) ACCC v Pacific National Pty Ltd [2020] FCAFC 77‍
Special leave to the High Court refused

ACCC v Cryosite Ltd [2019] FCA 116 (9 March 2017)
(Justice Beach)
Cartels (gun jumping) - penalties

The ACCC instituted proceedings against Cryosite alleging cartel conduct relating to an asset sale agreement with Cell Care Australia which 'required Cryosite to refer all customer enquiries to Cell Care after the agreement was signed but before the acquisition was completed'. The ACCC alleged this constituted 'gun jumping' and amounted to 'cartel conduct because it restricted or limited Cryosite’s supply of cord blood and tissue banking services and allocated potential customers from Cryosite to Cell Care'. Cryosite admitted the contravention. Penalties for $1.05m imposed (by consent) (ACCC media release).

ACCC v Colgate-Palmolive Pty Ltd (No 4) [2017] FCA 1590 ➤ (22 December 2017)
(Justice Wigney)
Cartels (price fixing)

The ACCC alleged an arrangement or understanding with other suppliers of ultra concentrated laundry detergent containing exclusionary provisions or provisions having the purpose or likely effect of lessening competition in the market for laundry detergent in Australia. Consideration of whether agreement or mere oligopolistic behaviour. Note that this was the relevant contested proceedings against Cussons; earlier consent proceedings with Colgate and Woolworths resulted in penalties of approx $27m. Application dismissed: The trial judge held that the applicant had not demonstrated that the respondent had entered into the alleged arrangement or understanding.

Appeal to FCAFC (dismissed) ACCC v Colgate-Palmolive Pty Ltd [2019] FCAFC 83 (24 May 2019)

See also ACCC v Colgate-Palmolive Pty Ltd (No 3) [2016] FCA 676 (3 June 2016) (Woolworths admission and pecuniary penalties of $9m)
See also ACCC v Colgate-Palmolive Pty Ltd (No 2) [2016] FCA 528 (16 May 2026) (Colgate admission and penalties of $18m)

▲ ACCC v Cement Australia Pty Ltd [2017] FCAFC 159 (5 October 2017)
(Justices Middleton, Beach and Moshinsky)
Penalties (anti-competitive agreements)

Successful appeal from against penalty. Original total penalties for anti-competitive conduct (s 45) $17.1m increased to $20.6m. See ACCC media release summarising penalty breakdown.

Appeal from ACCC v Cement Australia [2016] FCA 453 (29 April 2016) (penalty decision)

See also ACCC v Cement Australia [2013] FCA 909 (10 September 2013) (liability decision)
See also orders in ACCC v Cement Australia Pty Ltd [2016] FCA 536 (16 May 2016) (variation of orders)

ACCC v Australian Egg Corporation Limited [2017] FCAFC 152 ➤ (25 September 2017)
(Justices Besanko, Foster and Yates)
Cartels (attempt)

The ACCC alleged that Australian Egg Corporation Limited (AECL) and two egg producing companies attempted to induce egg producers who were members of AECL 'to enter into an arrangement to cull hens or otherwise dispose of eggs, for the purpose of reducing the amount of eggs available for supply to consumers and businesses in Australia'. The trial judge dismissed the claim. The ACCC appealed and in 2017 the Full Federal Court unanimously (in a joint judgment) dismissed the appeal.

Appeal from ACCC v Australian Egg Corporation Limited [2016] FCA 69 ➤ (10 February 2016)

ACCC v Australian Competition Tribunal [2017] FCAFC 150 ➤ (20 September 2017)
(Justices Besanko, Perram Robertson)
Merger authorisation - public benefits - judicial review

The ACCC applied for judicial review of the Tribunal’s decision to grant merger authorisation (Application by Tabcorp Holdings Limited [2017] ACompT 1) to Tabcorp for its proposed acquisition of Tatts, subject to a condition that Tabcorp sell its Odyssey gaming monitoring operations.  The public benefits justifying the merger were predominantly in the form of cost synergies and improved efficiencies; importantly, the Tribunal did not consider there would be a substantial lessening of competition in any market. The ACCC considered the Tribunal had made three reviewable errors; they succeeded on the first ground that the Tribunal was wrong to reason that it could only conclude the acquisition would result in a detriment if it found there was a substantial lessening of competition. See also related case: CrownBet Pty Ltd v Australian Competition Tribunal [2017] FCAFC 157 (27 September 2017) (CrownBet’s application for judicial review failed).

Port of Newcastle Operations Pty Ltd v Australian Competition Tribunal [2017] FCAFC 124 ➤ (16 August 2017)
(Justices Dowsett, Besanko, Middleton, Foster and Griffiths)
Access - Judicial review of decision by Tribunal

▲ CDPP v Nippon Yusen Kabushiki Kaisha [2017] FCA 876 ➤ (3 August 2017)
(Justice Wigney)
Cartels (criminal penalties)

First criminal cartel conviction (discount for guilty plea) - although conduct admitted, first discussion of penalties applicable in criminal context.

ACCC v Prysmian Cavi E Sistemi S.R.L. (No 13) [2017] FCA 851 ➤ (28 July 2017)
(Justice Besanko)
Penalties (cartel conduct)

Justice Besanko held that Prysmian had contravened the prohibition against price fixing, but not the prohibition against exclusionary provisions (primary boycotts). Penalties of $3.5m were ordered. The Full Federal Court dismissed an appeal by Prysmian.

Appeal to FCAFC (dismissed) Prysmian Cavi E Sistemi S.R.L. v ACCC [2018] FCAFC 30 ➤ (13 March 2018)
Special leave to appeal (refused) Prysmian Cavi E Sistemi S.R.L. v ACCC [2018] HCASL 201 ➤ (8 August 2018)

Related to ACCC v Prysmian Cavi E Sistemi S.R.L. (No 12) [2016] FCA 822 ➤ (20 July 2016) (liability judgment)

Tabcorp Holdings and Tatts Group - proposed merger (ACT 1 of 2017) ➤ (22 June 2017)
(Tribunal: Justice Middleton, Mr Grant Latta AM, Dr Darryn Abraham)
Mergers (authorisation)

Application for authorisation of proposed merger between Tabcorp Holdings Limited and Tatts Group Limited. Following release of statement of issues by the ACCC Tabcorp withdrew its application for informal merger clearance and applied for authoristation to the Tribunal. Authorisation granted subject to condition that Tabcorp sell the Odyssey gaming monitoring operations.

★ Air New Zealand Ltd v ACCC; PT Garuda Indonesia Ltd v ACCC [2017] HCA 21 (14 June 2017)
(Chief Justice Kiefel, Justices Bell, Keane, Nettle and Gordon)
Cartels (Price fixing) - Market in Australia

The ACCC claimed that Air NZ and Garuda had been involved in price fixing in relation to certain fuel surcharges. The trial judge held that there was no 'market in Australia' and dismissed the case. The ACCC appealed (press release). On 21 March 2016, the Full Federal Court, by majority, upheld the appeals. Air NZ and Garuda applied for, and were granted, special leave to appeal. The High Court unanimously dismissed both appeals.

Appeal from FCAFC (dismissed) ACCC v P T Garuda Indonesia Ltd [2016] FCAFC 42 (21 March 2016)
Trial ACCC v Air New Zealand Limited [2014] FCA 1157 (31 October 2014)

Penalty (Air NZ) ACCC v Air New Zealand Limited (No 15) [2018] FCA 1166 (27 June 2018)
Penalty (Garuda) ACCC v P.T. Garuda Indonesia Ltd (Remedies) [2019] FCA 786 (30 May 2019)

ACCC v Yazaki Corporation (No 3) [2017] FCA 465 (9 May 2017)
(Justice Besanko)
Cartels (market sharing, price fixing) - penalties

The ACCC alleged Yazaki and Australian Arrow Pty Ltd (a wholly owned subsidiary of Yazaki Corporation) engaged in cartel conduct, market sharing and price fixing in relation to the supply of wire harnesses to Toyota and related entities in Australia. Justice Besanko held that Yazaki had engaged in collusive conduct in contravention of s 45 (exclusionary provisions), but not in contravention of the price fixing provisions because his Honour held that the relevant conduct by Yazaki did not occur in a market in Australia (then required by the Act). A penalty of $9.5 million was imposed by Justice Besanko. An appeal against penalty succeeded (increased to $46m).

Related to ACCC v Yazaki Corporation (No 2) [2015] FCA 1304 (liability decision)
Appeal to FCAFC (succeeded on penalties) ACCC v Yazaki Corporation [2018] FCAFC 73 (16 May 2018)
Special leave to appeal (refused)

Bendigo and Adelaide Banks & Ors (Authorisation application re: ApplePay) ➤ (31 March 2017)
(ACCC)
Authorisation (collective bargaining and boycott)

Application for authorisation in respect of ApplePay - Authorisation denied

ACCC v Olex Australia Pty Ltd [2017] FCA 222 (9 March 2017)
(Justice Beach)
Cartels

Allegations of cartel conduct (dismissed)

★ Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2015] HCA 46➤ (9 December 2015)
(Chief Justice French, Justices Kiefel, Bell, Gageler, Keane, Nettle and Gordon)
Agreed penalties

This case was not a competition law case; however it related to the common practice of parties agreeing with regulators on appropriate penalties to present to the Court. The High Court concluded that "in civil penalty proceedings, courts are not precluded from considering and, if appropriate, imposing penalties that are agreed between the parties" (quote taken from judgment summary). This restored the common practice that had been halted as a result of the Full Federal Court's decision which precluded joint penalty submissions.

ACCC v Yazaki Corporation (No 2) [2015] FCA 1304 (21 November 2015)
(Justice Besanko)
Cartels (market sharing, price fixing) - penalties

Liability judgment. The ACCC alleged Yazaki and Australian Arrow Pty Ltd (a wholly owned subsidiary of Yazaki Corporation) engaged in cartel conduct, market sharing and price fixing in relation to the supply of wire harnesses to Toyota and related entities in Australia. Justice Besanko held that Yazaki had engaged in collusive conduct in contravention of s 45 (exclusionary provisions), but not in contravention of the price fixing provisions because his Honour held that the relevant conduct by Yazaki did not occur in a market in Australia (then required by the Act). A penalty of $9.5 million was imposed by Justice Besanko. An appeal against penalty succeeded (increased to $46m).

Related to ACCC v Yazaki Corporation (No 3) [2017] FCA 465 (penalty decision)
Appeal to FCAFC (succeeded on penalties) ACCC v Yazaki Corporation [2018] FCAFC 73 (16 May 2018)
Special leave to appeal (refused)

ACCC v Little Company of Mary Health Care Ltd [2015] FCA 1144 ➤ (26 October 2015)
(Justice Robertson)
Exclusive dealing - practice and procedure

Exclusive dealing (s 47): conditional acquisition of medial services from medical practitioners - effect or likely effect of substantially lessening competition in relevant market (contravention admitted). Practice and procedure: discretion to make declaration where statement of agreed facts, proposed consent orders - no pecuniary penalty sought.

ACCC v Visa Inc [2015] FCA 1020 ➤ (4 September 2015)
(Justice Wigney)
Exclusive dealing - pecuniary penalties

Exclusive dealing: section 47 - admitted conduct - related to moratorium on Dynamic Currency Conversion service. Penalty: relevant principles discussed (s 76) - $18m penalty imposed.

▲ Flight Centre Limited v ACCC [2015] FCAFC 104 (31 July 2015)
(Chief Justice Allsop, Justice Davies, Justice Wigney)
Cartels (price fixing - agency arrangements)

The ACCC alleged that Flight Centre attempted to induce three airlines (Singapore Airlines, Malaysia Airlines and Emirates) to enter into a contract, arrangement or understanding to fix, control or maintain prices for air travel in contravention of the Act. A key question was whether Flight Centre (as agent) and the airlines were ‘in competition’ in a relevant market. The primary judge found they were and that price fixing had been established. This appeal of the Full Federal Court succeeded, the Court finding Flight Centre did not compete in the alleged market (they found there was no market as alleged). This decision was overturned on appeal to the High Court

Appeal from ACCC v Flight Centre Limited (No 2) [2013] FCA 1313 ➤ (6 December 2013) (Justice Logan) (contravention established)
Appealed to High Court (succeeded)ACCC v Flight Centre Travel Group Limited [2016] HCA 49 (14 December 2016)

Related
ACCC v Flight Centre Limited (No 3) [2014] FCA 292 ➤ (28 March 2014) (penalty decision)
Flight Centre Limited v ACCC [2014] FCA 658 ➤ (19 June 2014) (application to stay penalty dismissed)
Flight Centre Limited v ACCC (No 2) [2018] FCAFC 53 ➤ (4 April 2018) (appeal and cross-appeal from penalty decision)

▲ ACCC v Australia and New Zealand Banking Group Limited [2015] FCAFC 103 ➤ (31 July 2015)
(Chief Justice Allsop, Justice Davies, Justice Wigney)
Cartels (price fixing)

The ACCC alleged that, in 2004, ANZ had required Mortgage Refunds Pty Ltd to agree to limit the amount of refund it could provide in respect of arranging ANZ home loans and that this, as a result, 'ANZ made and gave effect to an agreement where it would only allow Mortgage Refunds to continue to be accredited to offer ANZ mortgage products if it agreed to limit any refund it paid to its customers to $600, which would allow ANZ branches to match the deal if they chose to waive the ANZ loan establishment fee.' This, the ACCC alleged, constituted price fixing under s 45 (with aid of s 45A) of the then TPA, because 'ANZ and Mortgage Refunds were competitors in the market for the provision of loan arrangement services.' (see ACCC press release). The claim failed; this appeal also failed.

Appeal from ACCC v Australia and New Zealand Banking Group Limited [2013] FCA 1206 ➤ (18 November 2013)

▲ ACCC v Pfizer Australia Pty Ltd [2015] FCA 113 (18 March 2015)
(Justice Flick)
Misuse of market power - exclusive dealing

Various rebate agreements entered into ahead of patent expiry (Lipitor) were alleged to constitute a misuse of market power (pre Harper-reforms to s 46). It was also alleged exclusive dealing - the alleged supply on condition pharmacists would not stuck other products except to a limited extent. Both claims were dismissed. An appeal failed in substance (with some different findings on market power and taking advantage).

Appeal to FCAFC (largely unsuccessful) ACCC v Pfizer Australia Pty Ltd [2018] FCAFC (25 May 2018)
Special leave to appeal to HC refused

ACCC v Mitsubishi Electric Australia Pty Ltd [2013] FCA 1413➤ (19 December 2013)
Resale price maintenance (admitted) - Agreed penalties

The Court found that the Respondent had engaged in RPM and ordered a total of $2.2million in penalties for three separate contraventions.

ACCC v Australia and New Zealand Banking Group Limited [2013] FCA 1206➤ (18 November 2013)
(Justice Dowsett)
Cartels (price fixing)

The ACCC alleged that, in 2004, ANZ had required Mortgage Refunds Pty Ltd to agree to limit the amount of refund it could provide in respect of arranging ANZ home loans and that this, as a result, 'ANZ made and gave effect to an agreement where it would only allow Mortgage Refunds to continue to be accredited to offer ANZ mortgage products if it agreed to limit any refund it paid to its customers to $600, which would allow ANZ branches to match the deal if they chose to waive the ANZ loan establishment fee.' This, the ACCC alleged, constituted price fixing under s 45 (with aid of s 45A) of the then TPA, because 'ANZ and Mortgage Refunds were competitors in the market for the provision of loan arrangement services.' (see ACCC press release). The claim failed; an appeal by the ACCC also failed.

Appeal to FCAFC (dismissed) ACCC v Australia and New Zealand Banking Group Limited [2015] FCAFC 103 ➤ (31 July 2015)

▲ACCC v Cement Australia [2013] FCA 909(10 September 2013)
(Justice Greenwood)
Anti-competitive agreements, misuse of market power

Proceedings related to contracts entered into by five related companies (inc Cement Australia Pty Ltd, Cement Australia Holdings Pty Ltd, Cement Australia Queensland Pty Ltd, Pozzolanic Enterprises Pty Ltd and Pozzolanic Industries Pty Ltd) with operators of certain power stations in South East Queensland to acquire flyash. The ACCC alleged contraventions of s 45 (anti-competitive agreements) and misuse of market power. The misuse of market power claim was dismissed (with a finding that the companies were not taking advantage of their substantial market power) but several s 45 claims were made out. The lengthy judgment runs to 940 pages.

Separate penalty judgment ACCC v Cement Australia [2016] FCA 453(29 April 2016)

▲ACCC v Flight Centre Limited (No 2) [2013] FCA 1313➤ (6 December 2013)
(Justice Logan)
Cartels (price fixing - agency arrangements)

The ACCC alleged that Flight Centre attempted to induce three airlines (Singapore Airlines, Malaysia Airlines and Emirates) to enter into a contract, arrangement or understanding to fix, control or maintain prices for air travel in contravention of the Act. A key question was whether Flight Centre (as agent) and the airlines were ‘in competition’ in a relevant market. The primary judge found they were and that price fixing had been established. This was overturned on appeal the Full Federal Court, but a further appeal to the High Court succeeded. Penalties exceeding $12 were ultimately awarded.

Appeal to FCAFC (successful) Flight Centre Limited v ACCC [2015] FCAFC 104(31 July 2015)
Appealed to High Court (successful) ACCC v Flight Centre Travel Group Limited [2016] HCA 49 (14 December 2016)

Related
ACCC v Flight Centre Limited (No 3) [2014] FCA 292 ➤ (28 March 2014) (penalty decision)
Flight Centre Limited v ACCC [2014] FCA 658 ➤ (19 June 2014) (application to stay penalty dismissed)
Flight Centre Limited v ACCC (No 2) [2018] FCAFC 53 ➤ (4 April 2018) (appeal and cross-appeal from penalty decision)

ACCC v Koyo Australia Pty Ltd [2013] FCA 105➤ (18 October 2013)
Cartels (agreed penalties)

Admitted cartel conduct - penalties by consent. See ACCC media release: ‘The Court found that in 2008 and 2009, Koyo Australia made and gave effect to two separate cartel arrangements with two of its competitors to increase the price of ball and roller bearings to their aftermarket customers.’

ACCC v Prysmian Cavi E Sistemi Energia S.R.L. (No 5) [2013] FCA 294➤ (5 April 2013)
(Justice Lander)
Price fixing/bid rigging (admissions and agreed order between Viscas/ACCC). Proceedings continued against other respondents

In 2009 the ACCC brought action against three parties; Prysmian Cavi E Sistemi SRL (Prysmian), Nexans SA and Viscas Corporation. It alleged market sharing and price fixing (effectively in the form of bid rigging) between September and October 2003 in contravention of s 45(2) of the TPA (the relevant conduct occurred prior to introduction of the new cartel laws). The ACCC alleged that four companies - Prysmian, Nexans SA, Viscas and J-Power Systems (JPS was a whistleblower and received immunity from prosecution) - engaged in cartel conduct in the markets for land cables and submarine cables worldwide in the form of bid rigging and market allocation. Viscas, the third respondent, admitted that ‘it reached an anti-competitive arrangement with other Japanese and European suppliers of land cables in relation to an invitation to tender issued by Snowy Hydro Limited.’ A pecuniary penalty of $1.35m was ordered.

Related proceedings
Against Prysmian and Nexans ACCC v Prysmian Cavi E Sistemi S.R.L. (No 12) [2016] FCA 822 ➤ (20 July 2016) (liability judgment)
Penalty judgment against Prysmian ACCC v Prysmian Cavi E Sistemi S.R.L. (No 13) [2017] FCA 851 ➤ (28 July 2017)
Prysmian appeal to FCAFC (dismissed) Prysmian Cavi E Sistemi S.R.L. v ACCC [2018] FCAFC 30 ➤ (13 March 2018)
Prysmian application for Special Leave (refused) Prysmian Cavi E Sistemi S.R.L. v ACCC [2018] HCASL 201 ➤ (8 August 2018)

Application by Co-operative Bulk Handling Limited (No 3) [2013] ACompT 3(19 April 2013)
(Tribunal - Justice Mansfield, GF Latta and Ray Steinwall)
Exclusive dealing - notification

This was an appeal against revocation of exclusive dealing notification - consideration of public benefit v substantial lessening of competition. The Tribunal affirmed the ACCC’s notice revoking notification.

▲ Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235(19 March 2013)
(Justice Gordon)
Cartels (bid rigging) - misleading or deceptive conduct

Bradken found to have engaged in bid-rigging and ordered to pay damages amount to US$22.4 million (loss was assessed based on sums used as part of the transactions which were in $US). This was the first test of Australia's new cartel laws, which entered into force in 2009, and raised several interesting issues, including an issue as to the extraterritorial scope of the provision and consideration of anti-overlap provisions. An appeal was filed but subsequently discontinued. A claim alleging misleading or deceptive conduct was also established.

▲ Parmalat Australia Pty Ltd v VIP Plastic Packaging Pty Ltd [2013] FCA 119➤ (22 February 2013)
(Justice Collier)
Exclusive dealing - mandatory interlocutory injunction

Parlamat sought urgent interlocutory relief after VIP Plastic Packaging refused continued supply of goods. They alleged there was a serious question to be tried that the conduct constituted unlawful exclusive dealing. Application for interlocutory relief dismissed.

Applications by Robe River Mining Co Pty Ltd and Hamersley Iron Pty Ltd [2013] ACompT 2➤ (8 February 2013)
(Justice Mansfield and Mr R Shogren and Mr R Steinwall)
Access regime - declaration of service

This was a remission to the Tribunal following a High Court decision. Fortescue Metals Group Ltd, a mining company operating in the Pilbara, sought to have four heavy haulage railways (designed to transport iron ore) declared under the access regime to enable it to run its own trains on the lines. The NCC had recommended declaration of the lines and the Minister subsequently made declarations in relation to three of the lines. The Full Court denied an appeal by Fortescue to obtain access to Rio Tinto's Hamersley rail line in the Pilbara. In addition, Rio Tinto succeeded in a an appeal to overturn the ACT's decision to declare the Robe River line. Fortescue was ordered to pay costs. The High Court agreed with the Full Federal Court. In particular, it concluded that Criterion (b) should be determined by reference to a 'private profitability' test and not a 'social benefit' or 'natural monopoly' test. It remitted the matter back to the Tribunal for determination. On remission, the Tribunal concluded there was insufficient evidence to satisfy criterion (b) and therefore set aside the Minister's declarations in relation to the Robe and Hamersley Lines.

High Court Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36 ➤ (4 October 2012)
Full Federal Court Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2011] FCAFC 58 ➤ (4 May 2011)
Tribunal Fortescue Metals Group Limited; In the Matter of [2010] ACompT 2 ➤ (30 June 2010)

▲ ACCC v Ticketek Pty Ltd [2011] FCA 1489 ➤ (22 December 2011)
(Justice Bennett)
Misuse of market power - penalty

A statement of agreed facts were provided for purposes of the proceeding only, with Ticketek admitting, for the relevant period only, that it had substantial market power and had taken advantage of that power for a prohibited purpose. The period was for approximately 6 months, during which time Ticketek 'took action in respect of deterring or preventing a competitor, Lasttix, from engaging in competitive conduct in the Ticketing Related Services Market'. Most ticketing related services to which Ticketek was a party granted Ticketek exclusive rights to print, prepare, sell and distribute tickets at the relevant venue [para 10]. Ticketek refused on several occasions to implement in its Ticketing System a discounted Price Type to be published exclusively by Lasttix. The Court accepted that there had been a contravention of the Act. The parties proposed penalties which were accepted: $725k for each of the first three contraventions, $325k for the fourth and agreed costs of $100,000. See ACCC media release.

▲ ACCC v Metcash Trading Limited [2011] FCAFC 151 ➤ (30 November 2011)
(Justices Finn, Buchanan and Yates)
Merger

Appeal dismissed. The ACCC did not seek special leave to appeal to the High Court. Three separate reasons were provided. Justice Finn agreed with the reasons of Justice Yates and expressly refrained from expressing a concluded view on the proper construction of, and standard of proof, to be applied in the context of s 50 (mergers). Justice Buchanan made additional comments on burden of proof, concluding that it was inappropriate to apply a ‘real chance’ test should when considering what would happen if the proposed acquisition was blocked and whether or not (on that hypothesis) there would be a substantial lessening of competition. Instead his Honour concluded a ‘more likely than not’ or ‘balance of probabilities’ test should apply at both stages. Justice Emmett at trial had considered that the ‘real chance’ test should apply at the second stage only - the ACCC had argued it applied at both stages. For a useful summary of the reasons see Herbert Smith Freehilss Kramer’s note at Lexology.

Appeal from ACCC v Metcash Trading Limited [2011] FCA 967 ➤ (25 August 2011)

▲ ACCC v Metcash Trading Limited [2011] FCA 967 ➤ (25 August 2011)
(Justice Emmett)
Merger

After the ACCC announced it would oppose the proposed acquisition by Metcash of a share in Franklins, Metcash announced it would nevertheless proceed with the acquisition. The ACCC initiated proceedings seeking an injunction against the proposed acquisition. Justice Emmett found in favour of Metcash, finding the acquisition would not substantially lessen competition. It rejected the ACCC’s suggested market (Independent Wholesale Grocery Market) and this was enough to dismiss the case; his Honour nevertheless went on to state that even if that market was accepted there would not have been a substantial lessening of competition. An appeal failed and in September 2011 Metcash concluded its takeover of Franklins.

Appeal to FCAFC (dismissed) ACCC v Metcash Trading Limited [2011] FCAFC 151 ➤ (30 November 2011)

▲ ACCC v TF Woollam & Son Pty Ltd [2011] FCA 973 ➤ (24 August 2011)
(Justice Logan)
Cartels (price fixing) - cover pricing in building tenders

The ACCC alleged that ‘in relation to tenders for various Queensland and local government public works projects, the respondents variously engaged in or were a party to conduct’ which constituted making and giving effect to anti-competitive agreements (with conduct deemed anti-competitive by virtue of the deeming provision in s 45 as it then operated). The case considered what was necessary for an ‘arrangement or understanding’ to be established, noting it ‘must be consensual and carry with it an element of obligation rather than mere expectation’ (para 5)). On the facts it was not necessary to resolve the question of whether ‘mutual obligation’ was required (because there was one here). There was also some discussion of the purpose element (relevant purpose established) and on whether parties were ‘in competition’. Contravention established.

Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2011] FCAFC 58 ➤ (4 May 2011)
(Chief Justice Keane and Justices Mansfield and Middleton)
Access regime - declaration of service

This was an appeal following a Tribunal declaration determination. Fortescue Metals Group Ltd, a mining company operating in the Pilbara, sought to have four heavy haulage railways (designed to transport iron ore) declared under the access regime to enable it to run its own trains on the lines. The NCC had recommended declaration of the lines and the Minister subsequently made declarations in relation to three of the lines. The Full Court denied an appeal by Fortescue to obtain access to Rio Tinto's Hamersley rail line in the Pilbara. In addition, Rio Tinto succeeded in a an appeal to overturn the ACT's decision to declare the Robe River line. Fortescue was ordered to pay costs. The High Court agreed with the Full Federal Court. In particular, it concluded that Criterion (b) should be determined by reference to a 'private profitability' test and not a 'social benefit' or 'natural monopoly' test. It remitted the matter back to the Tribunal for determination. On remission, the Tribunal concluded there was insufficient evidence to satisfy criterion (b) and therefore set aside the Minister's declarations in relation to the Robe and Hamersley Lines.

Appeal to High Court (failed)Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36 ➤ (4 October 2012)
Full Federal Court Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2011] FCAFC 58 ➤ (4 May 2011)
Appeal from Tribunal Fortescue Metals Group Limited; In the Matter of [2010] ACompT 2 ➤ (30 June 2010)
Remission to Tribunal Applications by Robe River Mining Co Pty Ltd and Hamersley Iron Pty Ltd [2013] ACompT 2 ➤ (8 February 2013)

ACCC v April International Marketing Services Australia Pty Ltd (No 8) [2011] FCA 153 ➤ (25 February 2011)
(Justice Bennett)
Cartel (price fixing) - agreed penalties - injunctions

Between 2000-2004 Asia Pulp & Paper Company Ltd (Singapore) and PT Indah Kiat Pulp and Paper Tbk (Indonesia) arrived at 'arrangements with competitors for the supply to customers in Australia of uncoated woodfree folio and cut-size paper (UWF paper)' containing 'provisions which had the purpose and effect or likely effect of fixing, controlling or maintaining the average price per metric tonne at which they would supply UWF paper to customers in Australia' and gave effect to those provisions in its pricing for the supply of UWF paper to customers in Australia. This contravened the prohibition on anti-competitive conduct (in the form of price fixing) at the time (and the Competition Codes as defined in ss 150A and 150I). (see para 1). Parties reached agreement as to admitted facts and orders, including pecuniary penalties of $3.4m for APP Singapore and $800k for Indah Kiat. The case against the named party and another related company was resolved in earlier proceedings with collective penalties of $4m imposed. This proceeding was against the 11th (Asia Pulp & Paper Company Ltd (Singapore), 12th (PT Indah Kiat Pulp and Paper TBK (Indonesia), 13th (Paul George) and 15th (Sunil Sood) respondents. Proceedings against the 13th and 15th respondents were dismissed.

Related case ACCC v April International Marketing Services Australia Pty Ltd (No 5) [2010] FCA 17 ➤ (29 January 2010)
(involving 1st (April International Marketing Services Australia) and 2nd (April Fine Paper Trading Pte Limited (Singapore))

Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Limited (No 5) [2009] FCA 1464 ➤ (11 December 2009)
(Justice Tracey)
Pleadings - cartel - specificity of market (and associated proceedings) - strike out proceedings

This application involved an amended statement of claim after an original statement of claim had been struck out as failing to disclose a reasonable cause of action. The applicant was a representative party on behalf of a group of members who had (either directly or indirectly) paid for freight services provided by the respondents. It was alleged by the applicant that the respondents were members of a cartel which had agreed to and did fix charges for international airfreight into and out of Australia and that this increased prices through imposition of an agreed fuel surcharge, security surcharge and war-risk surcharge (para 3). The respondents argued all or part of the applicant's Second Amended Statement of Claim (SASC) should be struck out 'on the grounds that it discloses no reasonable cause of action or has a tendency to cause prejudice, embarrassment or delay.' (para 5) Justice Tracey concluded that it should be struck out, finding that the it was 'fundamentally flawed' (para 51). This application to strike out a further amended statement of claim also succeeded. An appeal to the Full Federal Court succeeded (by majority and in part).

Appealed to FCAFC Auskay International Manufacturing and Trade Pty Ltd v Qantas Airways Limited [2010] FCAFC 96 ➤ (12 August 2010)
Related Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ➤ (29 September 2008)

▲ Seven Network Ltd v News Limited [2009] FCAFC 166 (the C7 case) (2 December 2009)
(Justices Mansfield, Dowsett and Lander)
Anti-competitive agreements - misuse of market power - market definition

The case arose out of claims that in the late 1990s and early 2000s, News Ltd, Fox Sports and others had acquired AFL and NRL rights in order to put C7 out of business so that Fox Sports could 'dominate the market for supplying sports channels to pay television suppliers [and] dominate the market for the supply of pay television services to subscribers'. Seven’s claim was dismissed by the trial judge and the appeal failed.

Appeal from Seven Network Limited v News Limited [2007] FCA 1062 (the C7 case) ➤ (27 July 2007)

▲ Singapore Airlines Ltd v ACCC [2009] FCAFC 136 ➤ (2 October 2009)
(Chief Justice Black and Justices Mansfield and Jacobson)
Section 155 notices - carrying on business in Australia

Appeal dismissed. Singapore sought to set aside s 155 notices seeking information and documents relating to alleged price fixing. Consideration of market in Australia - ‘international air cargo services’

ACCC v Bill Express Limited (in liq) [2009] FCA 1022 ➤ (14 September 2009)
(Justice Gordon)
Exclusive dealing (third line forcing)

Considered meaning of ‘on the condition’. Also considered issues of misleading and deceptive conduct and false and misleading representations. A 'Bill Express Payment System', provided by Bill Express to participating newsagents and merchants, allowed consumers to pay bills or buy products and services at those participating outlets. In order to obtain access to the system, participating merchants entered into two contracts, one with Bill Express and another with Technology Business International (TBI) to rent computer and other equipment. The ACCC alleged (amongst other things) that entry into these contracts constituted third line forcing. In particular, Bill Express and TBI offered to supply merchants with electronic products and services under a contract with Bill Express 'on condition that the merchants acquired other goods and services' from a third party - TBI (para 2 declaration). Justice Gordon declared that entry into the contracts involved engaging in exclusive dealing (third line forcing). Her Honour considered the phrase 'on the condition' at length, rejecting the ACCC's contention that this required only mere hope or expectation (para 64), noting that a condition was required, although such condition need not be legally enforceable or direct (para 65) and the existence of a condition could be inferentially drawn by the court from the 'entire factual matrix' (para 65).

ACCC v Singapore Airlines Cargo Pty Ltd [2009] FCA 510 ➤ (20 May 2009)
(Justice Jacobson)
Pleadings - market definition (market in Australia)

Statement of claim struck out.

Emirates v ACCC [2009] FCA 312 ➤ (2 April 2009)
(Justice Middleton)
Validity of s 155 notice - market definition

Application dismissed. Emirates and Singapore Airlines had challenged ACCC decisions to issue s 155 notices seeking documents and information for alleged price fixing. Applications were not identical but were heard together. Determined that decision to issue notices was not so unreasonable it could not have been made in the circumstances (para 117).

ACCC v Australian Abalone Pty Ltd [2007] FCA 1834 ➤ (26 November 2007)
(Justice Weinberg)
Cartels (price fixing) - exclusionary provision (boycott) - penalties (where conduct was open and not dishonest)

Abalone was in high demand as a luxury item and harvesting and sale was regulated, with Victoria divided into zones (the central zone was in issue here). Relevant licences to harvest, distribute and sell were limited. The respondents were holders of the ‘Abalone Fishery Access Licence’ (quota holders) which permitted the taking of abalone of sale, use, possession etc. They were concerned that the power wielded by those with harvesting and distribution licences (‘Fish Receivers’ (Abalone) Licence’) to whom they were required to supply, combined with poaching which was prevalent, was leading to low returns. The held meetings and decided to establish a new company, Australian Abalone', to market and sell the abalone they caught. The agreements between the quota holders and the new company included several provisions, including stating that teh agreement envisaged provision of consultation services for ‘the purpose of generally utilising the combined volume of catch from the quota holders to efficiently control the supply to processors and buyers of abalone.’ The conduct was admitted. Justice Weinberg observed there was no attempt to contravene the Act and parties had not acted dishonestly. His Honour observed the case was unusual because the respondents acted openly, documented their actions and had no idea it might be breaching the law. His Honour considered most of the agreed penalties were within the permissible range - for the others he reduced the penalties. Total penalties of $927,500 were awarded.

▲ ACCC v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 ➤ (2 November 2007)
(Justice Heerey)
Cartel conduct (admitted) - price fixing and exclusive dealing - agreed penalties

The ACCC and Visy tendered an agreed statement of facts. The ACCC alleged Visy engaged in price fixing and market sharing in the market for the supply of corrugated fibreboard packaging (CFP) with Amcor between January 2000 and October 2004. Visy admitted liability (including admittign to 69 contraventions). Amcor was not pursued by the ACCC because they applied (successfully) for leniency under the ACCC's existing Leniency Policy for Cartel Conduct. Agreed penalties of $36m were accepted as appropriate (the highest awarded at the time), reflecting what Justice Heerey described as ‘the most serious cartel case to come before the Court in the 30 plus years in which price fixing has been prohibited by statute’ (para 320). No individual penalty was imposed on Mr Pratt (Director), but $1.5m was awarded against Mr Debney (CEO) and $500k against Mr Carroll (General Manager).

RP Data Limited (ACN 087 759 171) v State of Queensland [2007] FCA 1639 ➤ (30 October 2007)
(Justice Collier)
Misuse of market power - carrying on a business - market definition

Application dismissed. State of Queensland supplied bulk valuation and sales data to the applicant pursuant to a licence. When it came time to renew the respondent included proposing exclusion of certain information. Applicant claimed this exclusion constituted misuse of market power. Respondent not bound by s 46 when fulfilling statutory function. In relation to business that was not a statutory function it had substantial market power and had taken advantage of that power, but not for a proscribed purpose; the purpose in excluding information from the data was to prevent use of the data for direct marketing, not for anti-competitive purposes.

★ ACCC v Baxter Healthcare [2007] HCA 38 ➤ (29 August 2007)
(Chief Justice Gleeson, Justices Gummow, Kirby, Hayne, Callinan, Heydon and Crennan)
Derivative crown immunity

The majority of the High Court (Justice Callinan dissenting) upheld the appeal, finding Baxter did not benefit from derivative Crown immunity. They remitted the matter to the Full Federal Court to consider the ss 46 and 47 claims.

Primary judgment ACCC v Baxter Healthcare [2005] FCA 581 ➤ (16 May 2005)
Appeal to FCAFC on derivative immunity (unsuccessful) ACCC v Baxter Healthcare [2006] FCAFC 128 ➤ (24 August 2006)
Appeal to FCAFC on ss 46 and 47 on remission from HC (successful) ACCC v Baxter Healthcare [2008] FCAFC 141 ➤ (11 August 2008)
Penalty decision ACCC v Baxter Healthcare [2010] FCA 929 ➤ (26 August 2010)

Seven Network Limited v News Limited [2007] FCA 1062 (the C7 case) ➤ (27 July 2007)
(Justice Sackville)
Anti-competitive agreements - misuse of market power - market definition

The case arose out of claims that in the late 1990s and early 2000s, News Ltd, Fox Sports and others had acquired AFL and NRL rights in order to put C7 out of business so that Fox Sports could 'dominate the market for supplying sports channels to pay television suppliers [and] dominate the market for the supply of pay television services to subscribers'. Seven’s claim was dismissed and an appeal failed. The trial lasted 120 days, produced 85,654 documents comprising 589,392 pages (only 12849 of which were admitted into evidence), produced 1,028 pages of pleadings, 1,613 statements from lay witnesses, 2,041 pages of expert reports (plus appendices), 2,368 pages of written closing submissions by Seven and 2,594 pages of written closing submission from the Respondents (naturally supplemented by outlines, notes and summaries), a trial transcript running to 9,530 pages and resulted in a 1,200+ page judgment at a cost of more than $200m in legal fees (about the same amount as the claimed damages).  This was all described by Justice Sackville as “extraordinarily wasteful” and “bordering on the scandalous”.

Appeal to FCAFC (dismissed) Seven Network Ltd v News Limited [2009] FCAFC 166 (the C7 case) ➤ (2 December 2009)

Nelson Enterprises Pty Ltd [ACCC Notification] ➤ (31 July 2007)
(ACCC)
Collective bargaining notification

This was the first application made under new notification powers. Three Queensland citrus growers proposed to collectively negotiate the price and quantity of their supply of citrus fruit to Woolworths and IGA. The ACCC did not object.

Re Medicines Australia Inc [2007] ACompT 4 ➤ (27 June 2007)
(Justice French, GF Latta and Prof Walsh)
Authorisation - public benefits test

Medicines Australia (previously Australian Pharmaceutical Manufacturers' Association Inc) sought authorisation for a revised Code of Conduct from the ACCC. The ACCC granted authorisation for three years subject to a condition requiring members to report on events sponsored by them for healthcare professionals. Medicines Australia appealed to the Tribunal challenging both the three year authorisation (arguing it should be five years) and the condition imposed on authorisation. The Tribunal held that the public benefit from implementation of the Code was likely to outweigh any anti-competitive detriment. However, in exercising its discretion to authorise conduct, the Tribunal concluded that a condition should be imposed requiring reporting and public disclosure of certain hospitality benefits, which would 'increase the likelihood that the public benefit claimed for the Code is realised ...' (para 8). The Tribunal granted authorisation for five years.

▲ ACCC v Leahy Petroleum Pty Ltd [2007] FCA 794 (Geelong Petrol case) (29 May 2007)
Price fixing - meaning of 'contract, arrangement or understanding' (held no contravention)

The ACCC alleged that several petrol retailers in the Geelong area had made and given effect to price fixing provisions. It was not in dispute that parties had made calls to each other and discussed prices before raising their own, including discussion about the timing and size of possible increases. The dispute revolved around whether this constituted an ‘understanding’. Finding that understanding required a ‘meeting of the minds’ and commitment.

▲ ACCC v Jurlique International Pty Ltd [2007] FCA 79 (8 February 2007)
(Justice Spender)
Resale price maintenance (admitted) - agreed penalties

The ACCC alleged Jurlique had engaged in resale price maintenance (s 48) and anti-competitive conducts (s 45). All respondents made admissions and a joint submission as to final orders and penalties was submitted. The argument for RPM centered around ‘prestige goods’, with Justice Spender stating that ‘the attraction of many products to consumers lies in the fact that they are expensive, and have an aura of exclusivity about them.’ His Honour expressed some sympathy for the view that RPM should not be per se prohibited, but noted that RPM is prohibited per se prohibited in Australia and there was no available defence to Jurlique. Penalties totalling $2.7m were imposed.

ACCC v Eurong Beach Resort Ltd [2005] FCA 1900 ➤ (15 December 2005)
(Justice Kiefel)
Misuse of Market Power - exclusionary provisions - exclusive dealing - agreed penalties

Related to pricing of certain barge services on Fraser Island. Eurong had achieved a purpose of eliminating or substantially damaging a competitor by implementing a pricing policy of decreasing prices to ensure advertise price was $10 less than competitors and by charging below the cost of fuel and wages in some instances, where elimination of competitors would have allowed return to monopoly pricing. An exclusionary provision were also admitted and agreements constituting exclusive dealing were also admitted. Joint submissions and agreed facts. Total penalties of $900k awarded. See ACCC media release.

▲ Apco Service Stations Pty Ltd v ACCC [2005] FCAFC 161 ➤ (Ballarat Petrol case) (17 August 2005)
(Justices Heerey, Hely and Gyles)
Cartels (price fixing) - meaning of understanding

Apco and its managing director (Anderson) contended 'that they were not a party to any price-fixing understanding because they did not, as between themselves and the other parties to the alleged understanding, commit themselves to Apco’s charging the same prices or any particular prices or to increasing prices being charged by it.’ The Full Court overturned the findings of the primary judge, holding that commitment was required in order to find an understanding. No commitment existed here: ‘Apco received information about price increases (albeit the fact of an increase rather than the amount) from Bentley and Carmichael, as it did from other sources such as its franchisees, but it reserved to itself the decision, as a matter of commercial judgment, whether to follow those prices up’ (para 44). They distinguished Apco’s conduct from that of the other parties. See ACCC media release. The ACCC sought, but was refused, special leave to appeal to the High Court.

Appeal from ACCC v Leahy Petroleum Pty Ltd [2004] FCA 1678 ➤ (17 December 2004)

ACCC v Liquorland (Australia) Pty Ltd (ACN 007 512 419) [2005] FCA 683➤ (31 May 2005)
(Justice Gyles)
Cartels (exclusionary provisions - anti-competitive agreements) (admitted) - agreed penalties

Liquorland admitted cartel conduct (in the form of exclusionary provisions and anti-competitive agreements) in relation to objections they made to liquor licence applications. Penalties of $4.75m imposed. Separate contested proceedings continued against Woolworths.

Related (Woolworths liability decision) ACCC v Liquorland (Australia) Pty Ltd [2006] FCA 826 ➤ (30 June 2006)
Related (Woolworths penalty decision) ACCC v Liqourland (Australia) Pty Limited [2006] FCA 1799 ➤ (22 December 2006)

ACCC v Baxter Healthcare [2005] FCA 581➤ (16 May 2005)
(Justice Allsop)
Misuse of market power - exclusive dealing

This case involved supply by Baxter Healthcare Pty Ltd to a number of State purchasing authorities of sterile fluids used for dialysis treatment. Baxter manufactures and supplies intravenous (IV) solutions, peritoneal dialysis (PD) fluids and parenteral nutrition (PN) products. It has an effective monopoly in relation to sterile fluids but faced real competition in relation to PD fluids. During the relevant time Baxter tendered for the supply of sterile and PD fluids to State Purchasing Authorities (SPA's). If offered products either as (prohibitively) high item-by-item prices or 'bundled' at significantly lower prices. The 'bundled' price was only available on condition Baxter was the sole supplier of both sterile and PD fluids to the SPA's. The ACCC alleged that Baxter had contravened the exclusive dealing and misuse of market power provisions of the Act by using the market power it enjoyed in relation to sterile fluids to effectively compel the SPAs to enter into exclusive supply contracts including the PD products. It was conceded by the ACCC that the SPAs were not ‘carrying on a business’ for purposes of the Act and therefore had Crown immunity from Part IV.  A key issue became whether Baxter benefited from ‘derivative’ Crown immunity in its dealings with these authorities. 

The primary judge concluded the relevant prohibitions did not apply because of the principles of derivative Crown immunity, but if that immunity did not apply Baxter would have contravened the misuse of market power and exclusive dealing prohibitions, but only to a limited extent relevant to the ACCC’s claims. The ACCC appealed successfully.

Appeal to FCAFC on derivative immunity ACCC v Baxter Healthcare [2006] FCAFC 128 ➤ (24 August 2006)
Appeal to High Court on derivative immunity ACCC v Baxter Healthcare [2007] HCA 38 ➤ (29 August 2007)
Appeal to FCAFC on ss 46 and 47 ACCC v Baxter Healthcare [2008] FCAFC 141 ➤ (11 August 2008) (following remission from High Court)
Penalty decision ACCC v Baxter Healthcare [2010] FCA 929 ➤ (26 August 2010)

ACCC v Dermalogica Pty Ltd [2005] FCA 152 ➤ (2 March 2005)
(Justice Goldberg)
Resale price maintenance (partly admitted) - penalties

Involved RPM in relation to the sale of beauty products. ACCC ‘contended that Dermalogica made it known to Fatal Attraction and Café Beauty that it would no longer supply Dermalogica products to Fatal Attraction unless the salons agreed not to sell Dermalogica products at discounted prices. - ‘making it known’ to retailers Fatal Attraction and Café Beauty Advanced Anti-Aging that they would not supply products unless the retailers agreed not to discount was admitted RPM conduct.’ Dermalogica admitted contraventions in breach of s 96(3)(b) and (f) but disputed allegations relating to s 96(3)(a) (‘the supplier making it known to a second person that the supplier will not supply goods to the second person unless the second person agrees not to sell those goods at a price less than a price specified by the supplier’).

Para 42: ‘In order for the conduct to constitute resale price maintenance under s 96(3)(a), it must be established on the balance of probabilities that Dermalogica made it known to each of the salons that Dermalogica would not supply its products unless the salons agreed to stop discounting the prices of Dermalogica products on their websites. It is clear that Dermalogica asked the salons not to discount and that they posited that the likely consequence of the salons discounting was that Dermalogica could cease supply. But does the evidence suggest that Dermalogica made it known that the salons would cease supply. The principal question is, what is the necessary degree of certainty that must be apparent to the second person in relation to the withholding of supply consequential on the second person’s failure to agree to maintain the supplier’s specified resale price?’

Para 51: ‘There is no need for evidence that a formal agreement is sought. All that must be shown is that the supplier made it known that agreement by the second person not to discount is required to maintain supply; it need not be shown that the supplier was even seeking acknowledgment that it had been made known, let alone any indication of the second person’s intended course of conduct in response to the making-known. The provision requires only communication from the supplier to the second person, and it does not require anything in the nature of a response, nor does it require that the communication from the supplier sought a response. The second person may acquiesce or submit and may do so in complete silence.’

Justice Goldbert was satisfied Dermalogica had strongly discouraged the retailers from offering discounts and this ‘was given force by the threat of withholding skills’ (para 43). Breach established. Penalty of $250,000 imposed. ACCC also sought injunction which was not awarded.

Rieson v SST Consulting Services Pty Ltd (ACN 083 263 914) [2005] FCAFC 6 ➤ (15 February 2005)
(Justices Wilcox, Sackville and Finn)
Severance and s 4L of the Act - exclusive dealing (third line forcing)

The primary judge found that a loan contract included an exclusive dealing (third line forcing) provision. Pursuant to s 4L of the Act this could be severed and the rest of the contract remained enforceable. Damages were awarded in the amount claimed. SST appealed, arguing severence was not possible. The Full Court agreed, allowing the appeal, concluding severance was not possible, the relevant provisions being indivisible from the whole. Special leave was granted and, by 5-1 majority (Justice Kirby dissenting) the High Court allowed the appeal. The offending term could be excised and the loan contract remained enforceable.

Appeal to High Court (successful)SST Consulting Services Pty Limited v Rieson [2006] HCA 31 ➤ (15 June 2006)
Appeal from SST Consulting Services Pty Ltd v Rieson [2004] FCA 937 ➤ (21 April 2004)

ACCC v Australian Medical Association Western Australian Branch Inc [2003] FCA 686; (2003) ATPR 41-945 ➤
Price fixing, market definition

▲ ACCC v Australian Safeway Stores Pty Limited [2003] FCAFC 149 (30 June 2003)
Misuse of market power, exclusive dealing, price fixing

▲ Australian Gas Light Company (ACN 052 167 405) v Australian Competition & Consumer Commission (No. 3) [2003] FCA 1525
Mergers - declaration that merger would not SLC - declaration sought after ACCC refused to provide informal clearance

★ Boral Besser Masonry Limited (now Boral Masonry Ltd) v ACCC [2003] HCA 5 (7 February 2003)
Misuse of market power; predatory pricing

★ News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45
Deals with s 45's prohibition of exclusionary provisions in relation to South Sydney's exclusion from the national rugby competition in 2000.

★ Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 (11 December 2003)
Misuse of market power and exclusionary provisions

▲ Universal Music Australia Pty Ltd v ACCC [2003] FCAFC 193
Misuse of market power; exclusive dealing, purpose or effect of SLC

★ Visy Paper Pty Ltd v ACCC [2003] HCA 59
Section 45 and 47 - anti-overlap

ACCC v ABB Transmission and Distribution Limited [2001] FCA 383 ➤
Pecuniary penalty - joint submissions - factors relevant to appropriate penalty

ACCC v Boral Ltd (Includes Corrigendum dated 29 March 2001) [2001] FCA 30
Misuse of market power (appealed to High Court)

ACCC v Roche Vitamins Australia Pty Ltd [2001] FCA 150 ➤
Pecuniary penalty - factors relevant to appropriate penalty

★ Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 201 CLR 181 ➤
Restraint of Trade

★ Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13
Misuse of market power

★ Peters (WA) Ltd v Petersville Ltd [2001] HCA 45 ➤
Restraint of trade; s 4M

ACCC v Mobil Oil Australia Ltd (1997) ATPR 41–568
Price fixing. Pleadings. Parallel conduct.

▲ AW Tyree Transformers Pty Ltd and Wilson Transformer Co Pty Ltd (1997) ATPR (Com) 50–247
Authorisation - joint marketing scheme

▲ Re QIW Ltd (1995) 132 ALR 225
Merger, Market definition

▲ Gallagher v Pioneer Concrete (NSW) Pty Ltd (1993) 113 ALR 159
Anti-competitive agreements

▲ QIW Retailers Ltd v Davids Holdings [1993] FCA 204; (1993) ATPR 41-226
Mergers; Trade Practices Economics

▲ Stationers Supply Pty Ltd v Victorian Authorised Newsagents Associated Limited (1993) 44 FCR 35
Purpose or effect of substantially lessening competition (ss 45 and 47)

▲ TPC v Service Station Association Ltd (1993) 44 FCR 206
Anti-competitive agreements; Price Fixing

Berlaz Pty Ltd v Fine Leather Care Products Limited [1991] FCA 163; (1991) 13 ATPR 41-118  ➤ (Interlocutory proceedings)

'A distinction has to be drawn between purpose and consequence. The clear impression I have gained from the evidence is that FLC's purpose in acting as it did was not to get rid of or damage Berlaz as a competitor, although no doubt FLC knew that terminating the distributorship would be likely to have one or both of those results.' [Pincus J para 25]

▲ Eastern Express Pty Ltd v General Newspapers Pty Ltd (1991) 30 FCR 385 ➤
Predatory pricing

▲ Singapore Airlines Ltd v Taprobane Tours WA Pty Ltd (1991) 33 FCR 158
Market definition

▲ TPC v CSR Ltd [1990] FCA 521; (1991) ATPR 41-076
Misuse of market power - pecuniary penalties

★ Queensland Wire Industries v BHP (1989) 167 CLR 177 (High Court)
Misuse of market power - leveraging market power (section 46)

▲ Mark Lyons Pty Ltd v Bursill Sportsgear Pty Ltd (1987) 74 ALR 581
Exclusive dealing, market definition

Williams and Vajili Pty Ltd v Papersave Pty Ltd [1987] FCA 351 (Full Federal Court) ➤
Appeal dismissed
"Here we simply have a corporation which handled 60 per cent of the collection and treatment of waste computer paper, seeking to take a lease with no added special features, except a knowledge that a potential competitor also wanted the lease." (para 24)

Appeal from: Williams & Anor v Papersave Pty Ltd (1987) ATPR 40-818; [1987] FCA 162 (Sheppard J) ➤
Substantial market power and prohibited purpose existed, but not the taking advantage element; taking advantage of information, not taking advantage of market power

▲ TPC v Parkfield Operations Pty Ltd (1985) 5 FCR 140 ➤
Contract, arrangement or understanding - mutuality

▲ TPC v TNT Management Pty Ltd (1985) 6 FCR 1 ➤
Agreement or understanding - exclusionary provision - SLC - economic evidence

▲ O'Brien Glass Industries Ltd v Cool & Sons Pty Ltd (1983) 77 FLR 441 ➤
Market definition; exclusive dealing

▲ Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1983) 68 FLR 70 ➤
[Full Federal Court]
Meaning of 'substantial'

Appeal From: Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 62 FLR 437  ➤[Federal Court (Lockhart J)]
Meaning of 'substantial'

TPC v Allied Mills Industries Pty Ltd [1981] FCA 142; (1981) 60 FLR 38
Agreed penalties

Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 ➤
Secondary boycott - purpose - meaning of 'substantial'

▲ In Re Tooth and Co Limited; In Re Tooheys Limited (1979) ATPR 40–113 (Tribunal)
Market definition

▲ TPC v Nicholas Enterprises (1979) 40 FLR 83
Contract, arrangement or understanding

▲ Re Queensland Co-Op Milling Association Limited and Defiance Holdings Limited (QCMA) (1976) 8 ALR 481
Mergers; Trade Practices Economics
Involved proposed acquisitions of flour milling firms; authorisation/clearance was refused by the TPC and an appeal was made to the Tribunal. The significance of the decision lies in the Tribunal’s discussion of economic concepts, including the following key statements: “Competition expresses itself as rivalrous market behaviour. …” and ‘We take the concept of a market to be basically a very simple idea. A market is the area of close competition between firms or, putting it a little differently, the field of rivalry between them … a market is the field of actual and potential transactions between buyers and sellers amongst whom there can be strong substitution, at least in the long run, if given a sufficient price incentive. It is the possibilities of such substitution which set the limits upon a firm's ability to "give less and charge more". Accordingly, in determining the outer boundaries of the market we ask a quite simple but fundamental question: If the firm were to "give less and charge more" would there be, to put the matter colloquially, much of a reaction? And if so, from whom? …’

1972

Re Books [1972] 20 FLR 256
Resale Price Maintenance - Trade Practices Tribunal - Application for exemption from Restrictive Trade Practices Act 1971

★ Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69; (1972) 127 CLR 617 ➤
Resale price maintenance - recommended prices - withholding supply
A dinnerware wholesaler sold products with a catalogue from which it was possible to discern “suggested retail price” which was desribed as “a recommended price only with which there is no obligation to comply”. The wholesaler refused supply to a discount house on the ground that it was not their policy to supply these particular dinnerware products to discount houses. Decision: refusal did not need to be for the sole reason that the retailer was likely to supply below a specified price - it was sufficient that it was an operative and substantial reason. There was a 'relevant ‘price specified’ for purposes of the legislation at the time.

1971

★ Buckley v Tutty (1971) 125 CLR 353 ➤
Restraint of trade
Facts: Tutty was a professional footballer. He was a member of the Balmain Club which played matches organised by the NSWRL. Buckley was the president of the League. The League rules (a) required players to be registered before they could play, (b) contained provisions relating to the transfer of players between club and (c) prevented a player from playing for another club without the permission of the club with whom he was registered. Tutty claimed the rules constituted an unreasonable restraint of trade. Decision: There was no need for the relationship to be contractual - the ROT doctrine applies to restraints ‘howsoever imposed, and whether voluntary or involuntary’. The rules in this case were in ROT. They were ‘plainly a fetter on the right of a player to seek and engage in employment. It is not to the point to say that the player may resign from the League. If he does resign he may perhaps obtain employment as a labourer or as a cricketer but he will not be able to obtain employment as a professional Rugby League footballer, either in New South Wales or in a number of other places.’

1963

Re British Basic Slag Ltd’s Agreements [1963] 2 All ER 807 ➤ [Court of Appeal (England)]
Agreement
Facts: Eight steel companies owned BBS shares. Each entered into a separate (but identical) agreement with BBS to sell to it all its slag and not to sell to anyone else without the consent of BBS. Prior to entering into the agreements, drafts had been distributed to the companies and they had been discussed in meetings. Issue: Legislation required registration of certain agreements under which restrictions were accepted by two or more of the parties. Was there agreement between such parties or just a series of vertical agreements? Decision (Lord Diplock): Agreements required a ‘meeting of the minds’ and ‘mutuality’ requiring ‘parties to it should have communicated with one another … and that as a result … each has intentionally aroused in the other an expectation that he will act in a certain way.’ In this case they all knew each member would enter into a contract and this induced them to do so: ‘If this is not an “arrangement” I do not know what is’ and ‘That it was pure coincidence [that each member entered into agreement on identical terms] offends credulity’.

1950

★ Lindner v Murdock's Garage (1950) 83 CLR 628 ➤
Restraint of trade
Facts: Murdock operated a garage business in two towns - Crystal Brook and Wirrabara - which were 30 miles apart. Lindner was a mechanic employed by Murdoch. The employment contract specified that Linder would not, for a year after terminating employment, work in a garage business within Murdoch's sales territory. After four years Lindner left Murdock's Garage and went to work for another garage in Crystal Brook. Crystal Brook is where Lindner had worked when employed by Murdock. Claim: Murdock sought an injunction to prevent Lindner working in Crystal Brook and Lindner claimed the relevant clause was void as being in restraint of trade. Decision (by majority): Unreasonable restraint of trade established.

1913

★ Attorney-General v The Adelaide Steamship Co Ltd (1913) 18 CLR 30 ➤
Price fixing and market allocation (injury to the public) and Restraint of Trade (Privy Council)
Following a period of 'ruinous competition', coal producers (known as the vend) entered into an agreement which fixed prices, allocated quotas and restricted the opening of new mines. The coal producers also entered into a shipping agreement with companies shipping coal from Newcastle which provided that they would deal only with each other and fixed the maximum reselling price of coal. Action was brought under the Industry Preservation Act 1906 which at the relevant time required (s 7) that for a breach to be established there needed to be an agreement and 'intent to control, to the detriment of the public, the supply or price of any service, merchandise, or commodity'. The Board held the vend 'was intended to preclude competition in the sense of underselling among its members, and by this means to raise and maintain the price of coal won from the Newcastle and Maitland coalfields' (at 47), but because it followed a period of ‘disastrously low’ prices due to years of ‘cut-throat’ competition it was not contrary to the public interest. The Council considered that the AG could not 'rely on the mere intention to raise prices as proving an intention to injure the public', but rather had to demonstrate that there was also an 'intention to charge excessive or unreasonable prices' (not demonstrated here). This decision made the legislation largely ineffective in addressing cartels.

1911

★ R v Associated Northern Collieries (1911) 14 CLR 387 ➤
Establishing collusion
Decision made pursuant to Australian Industries Preservation Act 1906-9. On the issue of establishing collusion Isaacs J stated: ‘Community of purpose may be proved by independent facts, but it need not be.  If the other defendant is shown to be committing other acts, tending to the same end, then though primarily each set of acts is attributable to the person whose acts they are, and to him alone, 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, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge.’ This passage was quoted with approval by the Federal Court in David Jones (1986).

1894

▲ Nordenfelt v The Maxim Nordenfelt Guns & Ammunition Co Ltd [1894] AC 535 [English]
Restraint of trade
Nordenfelt had a machine gun manufacturing business. He (effectively) sold the business the Maxim Nordenfelt. He entered into a restrictive covenant by which he could not engage in the trade of manufacturing guns, explosives or ammunition or engage in any competing business for a period of 25 years. Nordenfelt later entered into an agreement with another gun company. Held: The only justification for a restraint of trade is reasonableness in the interest of the parties and the public. Restraint found to be reasonable in this case.