ACCC v Leahy Petroleum (FCA)
Federal Court of Australia
Justice Gray
ACCC v Leahy Petroleum Pty Ltd [2007] FCA 794 (29 May 2007)
Issues: cartel - price fixing - contract, arrangement or understanding - commitment
Snapshot
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.
Justice Gray held that there as no 'contract, arrangement or understanding' between the parties because there was no ‘commitment’ or obligation to increase prices.
Catchwords
TRADE PRACTICES – price-fixing – arrangements or understandings – whether existed between competitors within the Geelong retail petrol market – whether contained provisions for the fixing of retail petrol prices – whether necessary for parties to have commitment or moral obligation – applicant pleaded existence of seven bipartite and one tripartite interlocking arrangements or understandings and that effect was given to them on a number of occasions within a two-year period – relied on oral evidence of some alleged parties to them, circumstantial evidence in the form of data as to times of telephone communications between parties to alleged arrangements or understandings and changes in retail price of petrol, as well as admissions by some alleged parties to arrangements or understandings – whether evidence established existence, and giving effect to, of arrangements or understandings – whether evidence of origins of alleged arrangements or understandings sufficient – whether oral evidence and circumstantial evidence inconsistent – oral evidence not specific as to any particular occasion – circumstantial evidence often inconsistent with oral evidence, and with applicant’s allegations – whether judgment should be given on admissions
EVIDENCE – admissions – whether appropriate to exercise discretion to pronounce judgment based on admissions – whether reason to question correctness of facts admitted or agreed – whether previous representations made in furtherance of common purpose – whether reasonably open to find that representations were made in furtherance of common purpose – existence of common purpose established by evidence other than previous representation itself
Words and phrases
"contract", "arrangement", "understanding", "make an arrangement", "arrive at an understanding", "provision"
Legislation
Trade Practices Act 1974 - sections 45, 45A