BlueScope Steel Limited v ACCC

Federal Court of Australia
[2025] FCAFC 118 (29 August 2025)
Justices Wigney, Bromwich and Halley

Catchwords

COMPETITION – appeals from orders made as to liability for attempts to induce a corporation to arrive at an understanding containing a cartel provision, contravening ss 445ZZRJ and s 76(1)(d) of the Competition and Consumer Act 2010 (Cth) (the Act) – where primary judge found appellants attempted to induce nine counterparties to arrive at an understanding – where understandings found to contain a provision relating to a base or floor price for flat steel products, or implementing a price increase for those products – where appellants alleged they had not sought commitments to course of action from counterparties – whether commitment necessary for an understanding or an attempt to induce an understanding – where appellant claimed no intention to induce an understanding – whether primary judge erred in identifying relevant intention – where appellants claimed that inducements identified by primary judge were based on conduct which had already occurred – whether the primary judge erred in finding that the appellants intended to attempt to induce understandings containing cartel provisions – whether the primary judge erred in finding attempts to induce understandings within the meaning of s 44ZZRJ of the Act – whether the primary judge erred in concluding that the appellants’ conduct was capable of assent and/or immediately connected, or proximate, to an attempt to induce an understanding – whether the respondent was precluded by s 77(2) of the Act from seeking a pecuniary penalty in respect of the first appellant – whether the Court has the power to make a non-indemnification order – appeals dismissed

Appeal from

ACCC v Bluescope Steel Ltd (No 5) (2022) FCA 1475 (9 December 2022) (liability)

ACCC v Bluescope Steel Ltd (No 6) (2023) FCA 1029 (Justice O’Bryan) (penalty)

Finding

Appeal dismissed

Original finding of liability was for cartel conduct in the form of attempt to induce price fixing. A penalty of $57.5 million imposed on BlueScope and $575,000 on Jason Ellis. The appeal judgment notes:

[at para 3]: The primary judge found that both BlueScope and Mr Ellis had attempted to induce seven distributors of flat steel products, one joint venture importer of flat steel products, and one overseas flat steel mill, to contravene s 44ZZRJ of the Competition and Consumer Act 2010 (Cth) (the Act) by arriving at understandings each containing a cartel provision, as defined in s 44ZZRD(1) of the Act.