The evolution of Australia’s cartel Jurisprudence

Andrew Christopher and Lachlan Blair

Australian Journal of Competition and Consumer Law

Andrew Christopher and Lachlan Blair, ‘The Evolution of Australia’s Cartel Jurisprudence: Judicial Guidance on the Use of Informal Merger Clearance Documents in Competition Law Proceedings and Witness Evidence of Inducement to form a Cartel’ (2022) 30(1) Australian Journal of Competition and Consumer Law 46

Introduction

Following the recent interlocutory judgment of O'Bryan J in the Federal Court, companies which engage in the Australian Competition and Consumer Commission's (ACCC) informal review process should be aware that their submissions, as well as those of their financial and legal advisors, may be admitted under the business records exception to the hearsay rule in other proceedings initiated by the ACCC, including for serious cartel conduct.

This note examines the merger ruling and other key admissibility rulings in the interlocutory judgment of O'Bryan J in Australian Competition and Consumer Commission v BlueScope Steel Ltd, including judicial guidance on evidence of inducement to form a cartel. While not a final judgment, the interlocutory judgment provides important clarification in relation to several evidentiary questions that can arise in the conduct of competition litigation. [footnote omitted]