ACCC v NQCranes Pty Ltd

Australian Competition and Consumer Commission v NQCranes Pty Ltd [2022] FCA 1383

Federal Court of Australia
NSD1144 of 2020
Judgment: 23 November 2022
Judgment: Justice Abraham

In brief

NQCranes admitted to making a contract or arrangement (ass part of a written Ddistributorship Agreement) with a competitor containing a provision allocating customers in contravention of s 44ZZRD.

A penalty of $1m was imposed (having been agreed between the parties) and NQCranes was also ordered to pay $50,000 costs and establish a Compliance Program.

Catchwords

COMPETITION – proceeding for civil contraventions of cartel provisions in Div 1 in Pt IV of the Competition and Consumer Act 2010 (Cth) – whether appropriate for court to make declarations of contraventions, impose civil penalties and order respondent to implement a compliance plan – where conduct serious – where mitigating factors present, including that conduct was isolated, that senior management did not know that conduct was illegal and respondent has not previously contravened the Act – where pecuniary penalty has sufficient sting to achieve deterrence – where desirable to make agreed penalty when court satisfied that agreed penalty is an appropriate remedy

Legislation

Competition and Consumer Act 2010 (Cth) ss 4E, 44ZZRD, 44ZZRJ, 45AD, 45AJ, 76 and 86C

Competition and Consumer Amendment (Competition Policy Review) Act 2017 (Cth)

Evidence Act 1995 (Cth) s 191

Federal Court of Australia Act 1976 (Cth) ss 21 and 23

Cases

ACCC v Anglo Estates Pty Ltd [2005] FCA 20; (2005) ATPR 42-044

ACCC v B & K Holdings (Qld) Pty Ltd [2021] FCA 260

ACCC v Cryosite [2019] FCA 116; (2019) 135 ACSR 231

ACCC v Virgin Mobile Australia Pty Ltd (No 2) [2002] FCA 1548

ACCC v Z-Tek Computer Pty Ltd [1997] FCA 871; (1997) 78 FCR 197

ASIC v Pegasus Leverages Options Group Pty Ltd [2002] NSWSC 310; (2002) 41 ACSR 561

ASIC v Westpac Banking Corporation (No 3) [2018] FCA 1701; (2018) 131 ACSR 585

Australian Building and Construction Commission v Pattinson [2022] HCA 13; (2022) 399 ALR 599

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25

Australian Competition and Consumer Commission v Sontax Australia Pty Ltd [2011] FCA 1202

Australian Securities and Investments Commission v Commonwealth Securities Limited [2022] FCA 1253

Australian Securities and Investments Commission v Monarch FX Group Pty Ltd [2014] FCA 1387; 103 ACSR 453

Australian Securities and Investments Commission v Stone Assets Management Pty Ltd [2012] FCA 630; (2012) 205 FCR 120

Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482

Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; (2018) 260 FCR 68

Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612

Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; (2004) ATPR 41-993

NW Frozen Foods Pty Ltd v Australian Competition Commission [1996] FCA 1134; (1996) 71 FCR 285

Seven Network Ltd v News Ltd [2009] FCAFC 166; (2009) 182 FCR 160

Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249

Thomson Australian Holdings Pty Ltd v TPC [1981] HCA 48; (1981) 148 CLR 150

Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49; (2021) 284 FCR 24

Australian Competition and Consumer Commission v NQCranes Pty Ltd [2022] FCA 1383 (23 November 2022)