ACCC v Yazaki (FCA)
Federal Court of Australia
Justice Besanko
ACCC v Yazaki Corporation (No 3) [2017] FCA 465 (9 May 2017)
Related judgments
ACCC v Yazaki Corporation [2018] FCAFC 73 (16 May 2018) (appeal)
ACCC v Yazaki Corporation (No 3) [2017] FCA 465 (9 May 2017) (penalties)
ACCC v Yazaki Corporation (No 2) [2015] FCA 1304 (21 November 2015) (liability)
Issues: cartels (market sharing and price fixing), penalties
In brief: ACCC appealed against penalty - appeal partly successful and penalty increased
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.
The conduct was alleged to have occurred between 2003-2009. In relation to pre-2009 conduct it was alleged the parties had contravened s 45 (then capturing price fixing, exclusionary provisions and other anti-competitive agreements) and from 24 July 2009, s 44ZZRK (part of the new cartel regime, now renumbered s 45AK, prohibiting giving effect to a cartel provision). The ACCC sought penalties of between $42-$55m.
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). Australian Arrow was found to have engaged in some of the market sharing and price fixing conduct alleged by the ACCC. Justice Besanko ordered penalties of $9.5m against Yazaki.
The ACCC successfully appealed against this penalty, with the full Federal Court increasing it to $46 million, representing the highest ever penalty imposed for cartel conduct in Australia.