ACCC v Air New Zealand (FCA)
Federal Court of Australia
Justice Perram
ACCC v Air New Zealand Limited [2014] FCA 1157 (31 October 2014)
Finding: no market in Australia (no breach) (overturned on appeal)
Related Judgments
High Court of Australia [2017] HCA 21 (14 June 2017)
Full Federal Court: ACCC v P T Garuda Indonesia Ltd [2016] FCAFC 42 (21 March 2016)
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)
Issues: Price fixing - arrangement or understanding - market in Australia - substantial lessening of competition
File numbers
NSD534 of 2010 and NSD955 of 2009
Parties
ACCC v AIr New Zealand Limited
ACCC v PT Garuda Indonesia Ltd
Catchwords
TRADE PRACTICES – price fixing – alleged arrangements or understandings between airlines to fix fees and surcharges in relation to the carriage of air cargo – Trade Practices Act 1974 (Cth) ss 45 and 45A – whether airlines engaged in collusive practices – whether airlines bound by domestic law or practice of foreign countries to fix charges
TRADE PRACTICES – price fixing – whether alleged price fixes had purpose, or were likely to have the effect, of substantially lessening competition in a market in Australia – whether markets were ‘in Australia’ for the purposes of Trade Practices Act 1974 (Cth) s 4E – definition of market – assessment of substitution and switching behaviour – assessment of product, geographical and functional dimensions
EVIDENCE – proving a contract, arrangement or understanding within the meaning of Trade Practices Act 1974 (Cth) s 45 – circumstantial proof of collusive behaviour – evidence to be looked at as a whole
Legislation
Trade Practices Act 1974 (Cth) - s 4E - s 45 - s 45A
In brief
The ACCC claimed that Air NZ and Garuda had been involved in price fixing in relation to certain fuel surcharges. Justice Perrum held that there was no 'market in Australia' and dismissed the case.
Post
An appeal to the Full Federal Court was successful (held there was a market in Australia)
A further appeal to the High Court was dismissed.