Competition Law Cases

ACCC v Cascade Coal Pty Ltd [2019] FCAFC 154 
(September 2019)
Alleged cartel conduct (ACCC's appeal dismissed)

Appeal from ACCC v Cascade Coal Pty Ltd (No 3) [2018] FCA 1019

ACCC v Cryosite Ltd [2019] FCA 116  
(Justice Beach)
Cartels (penalties): Cartel conduct (gun jumping) - $1.05m penalty imposed

ACCC v Pacific National Pty Limited (No 2) [2019] FCA 669
(Justice Beach) (15 May 2019)
Mergers: Acquisition involving Queensland rail terminal (s 50 CCA)
(ACCC appeal unsuccessful)

Commonwealth Director of Public Prosecutions v Kawasaki Kisen Kaisha Ltd [2019] FCA 1170
(Justice Wigney)
Criminal cartel. Guilty plea. Fine of $34.5 million

ACCC v Australian Competition Tribunal [2017] FCAFC 150
Mergers: ACCC's application for judicial review regarding process for determining merger authorisation

ACCC v Australian Egg Corporation Limited [2017] FCAFC 152
Cartels (attempt): Allegations of attempting to induce cartel conduct (dismissed)

▲ ACCC v v Cement Australia Pty Ltd [2017] FCAFC 159
Appeal against penalty from: ACCC v Cement Australia [2013] FCA 909 (10 September 2013)
Anti-competitive agreements, misuse of market power, penalties

ACCC v Colgate-Palmolive Pty Ltd (No 4) [2017] FCA 1590
Cartels (price fixing): consideration of whether agreement or mere oligopolistic behaviour
[Note this was the contested proceedings; earlier consent proceedings with Colgate and Woolworths resulted in penalties of approx $27m]

ACCC v Olex Australia Pty Ltd [2017] FCA 222 (9 March 2017)
Cartels: Allegations of cartel conduct dismissed

★ Air New Zealand Ltd v ACCC; PT Garuda Indonesia Ltd v ACCC [2017] HCA 21
Cartels (price fixing), market definition: 'market in Australia'; s 4E

Bendigo and Adelaide Banks & Ors (Authorisation application re: ApplePay)
Authorisation (collective bargaining and boycott): Application for authorisation in respect of ApplePay
Authorisation denied

▲ Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha [2017] FCA 876
Cartels (criminal penalties): First criminal cartel conviction (discount for guilty plea) - although conduct admitted, first discussion of penalties applicable in criminal context.

Port of Newcastle Operations Pty Ltd v Australian Competition Tribunal [2017] FCAFC 124 ➤
Access

▲ Tabcorp Holdings and Tatts Group - proposed merger (ACT 1 of 2017)
Mergers (authorisation): Tribunal decision on merger authorisation

▲ ACCC v ANZ Ltd [2015] FCAFC 103 (31 July 2015)
(Chief Justice Allsop, Justice Davies, Justice Wigney)

Price fixing: price fixing and agency arrangements (alleged agreement to limit the amount of refund that could be provided by agent) (claim dismissed - no price fixing)

Appeal from: ACCC v ANZ Ltd [2013] FCA 1206 (18 November 2013) (Justice Dowsett)

ACCC v Little Company of Mary Health Care Ltd [2015] FCA 1144  ➤ (Justice Robertson)

Exclusive dealing (s 47): conditional acquisition of medial services from medical practitioners - effect or likely effect of substantially lessening competition in relevant market (contravention admitted)

Practice and procedure: discretion to make declaration where statement of agreeed facts, proposed consent orders - no pecuniary penalty sought

▲ ACCC v Pfizer [2015] FCA (Justice Flick)

Misuse of market power: Alleged abuse of power - various rebate agreements entered into ahead of patent expiry (Lipitor) (pre Harper-reforms to s 46) (no contravention found)

Exclusive dealing: Alleged supply on condition pharmacists would not stuck other products except to a limited extent (no contravention found)

Appealed (unsuccessfully) to Full Federal Court: ACCC v Pfizer [2018] FCAFC (25 May 2018)

Special leave to appeal to High Court refused

ACCC v Visa Inc [2015] FCA 1020 (Justice Wigney)

Exclusive dealing: section 47 - admitted conduct - related to moratorium on Dynamic Currency Conversion service

Penalty: relevant principles discussed (s 76) - $18m penalty imposed

ACCC v Yazaki Corporation (No 2) [2015] FCA 1304

Cartels

Appeal on penalty (successful): ACCC v Yazaki Corporation [2018] FCAFC 73

★ Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2015] HCA 46
This case was not a competition law case; however it related to the common practice of parties agreeing with regulators on appropriate penalties to present to the Court. The High Court concluded that "in civil penalty proceedings, courts are not precluded from considering and, if appropriate, imposing penalties that are agreed between the parties" (quote taken from judgment summary). This restored the common practice that had been halted as a result of the Full Federal Court's decision which precluded joint penalty submissions.

▲ Flight Centre Limited v ACCC [2015] FCAFC 104
Chief Justice Allsop, Justice Davies, Justice Wigney

Cartels (agency arrangements)

Appeal to High Court (successful): ACCC v Flight Centre Travel Group Limited [2016] HCA 49

Appeal from: ACCC v Flight Centre Limited (No 2) [2013] FCA 1313 (6 Dec 2013)

ACCC v ANZ Ltd [2013] FCA 1206 (18 November 2013)
Price fixing

▲ ACCC v Cement Australia [2013] FCA 909 (10 September 2013)
Anti-competitive agreements, misuse of market power

Penalty judgment: ACCC v Cement Australia [2016] FCA 453
Appeal against penalty successful: ACCC v v Cement Australia Pty Ltd [2017] FCAFC 159

▲ ACCC v Flight Centre Limited (No 2) [2013] FCA 1313 (6 Dec 2013) (Justice Logan)

Cartel: Agency

Appeal to Full Federal Court:
Flight Centre Limited v ACCC [2015] FCAFC 104

Appeal to High Court:
ACCC v Flight Centre Travel Group Limited [2016] HCA 49

ACCC v Koyo Australia Pty Ltd [2013] FCA 105 (18 October 2013)
Admitted cartel conduct - penalties by consent

ACCC v Mitsubishi Electric Australia Pty Ltd [2013] FCA 1413 (19 December 2013)
Resale price maintenance (admitted conduct)

ACCC v Prysmian Cavi E Sistemi Energia SRL (No 5) [2013] FCA 294 (5 April 2013) (Justice Lander)
Price fixing/bid rigging (admissions and agreed order between Viscas/ACCC). Proceedings continued against other respondents

See: ACCC v Prysmian Cavi E Sistemi S.R.L. (No 12) [2016] FCA 822
Cartels, price fixing (bid rigging); extraterritoriality

Application by Co-operative Bulk Handling Limited (No 3) [2013] ACompT 3
Appeal against revocation of exclusive dealing notification - public benefit v SLC

▲ Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235 (19 March 2013)
Cartels - bid-rigging - first case to consider new cartel laws

▲ Parmalat Australia Pty Ltd v VIP Plastic Packaging Pty Ltd
[2013] FCA 119 (22 February 2013)
Exclusive dealing (application for interlocutory relief dismissed)

ACCC v April International Marketing Services Australia Pty Ltd (No 8) [2011] FCA 153
Foreign cartel with effect of price fixing in Australia contrary to s 45. Penalty principles.

▲ ACCC v Metcash Trading Limited [2011] FCA 967 (25 August 2011); [2001] FCAFC 151 (30 November 2011)
Merger - held merger not likely to SLC. ACCC appeal failed.

▲ ACCC v TF Woollam & Son Pty Ltd [2011] FCA 973 (24 August 2011)
Price fixing - cover pricing in building tenders

▲ ACCC v Ticketek Pty Ltd [2011] FCA 1489 (22 December 2011)
Misuse of market power (consent orders - $2.5m penalty)

★ Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2011] FCAFC 58 (4 May 2011) (Full Federal Court)
Access regime

Appeal to High Court: Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36
Appeal from Tribunal: Fortescue Metals Group Limited; In the Matter of [2010] ACompT 2

ACCC v Bill Express Ltd (in liq) (2009) 180 FCR 105; [2009] FCA 1022
Exclusive dealing (third line forcing)

Emirates v ACCC [2009] FCA 312 ➤
Validity of s 155 notice - issue of market definition

▲ Seven Network Ltd v News Limited [2007] FCA 1062; [2009] FCAFC 166 (the C7 case)
Anti-competitive agreements; misuse of market power; market definition

▲ Singapore Airlines Ltd v ACCC [2009] FCAFC 136 (2 October 2009) ➤
Market definition

Appeal from ACCC v Singapore Airlines Cargo Pty Ltd (2009) ATPR 42-288; [2009] FCA 510

ACCC v Australian Abalone Pty Ltd [2007] FCA 1834
Admitted price fixing and boycott conduct - discussion of agreed penalties and mention of proposed criminal penalties

▲ ACCC v Baxter Healthcare [2007] HCA 38 (29 August 2007); [2008] FCAFC 141
Misuse of market power, exclusive dealing, derivative crown immunity

▲ ACCC v Jurlique International Pty Ltd [2007] FCA 79
Resale price maintenance

▲ ACCC v Leahy Petroleum Pty Ltd [2007] FCA 794 (29 May 2007) (Geelong Petrol case)
Price fixing - meaning of 'contract, arrangement or understanding' (held no contravention)

▲ ACCC v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 (2 November 2007)
Admission of cartel conduct - penalties of $36m + imposed

Nelson Enterprises Pty Ltd [ACCC Notification - 31 July 2007] ➤
Collective bargaining notification (first application - involved Queensland citrus growers)

Re Medicines Australia Inc [2007] ACompT 4 (27 June 2007)
Authorisation

RP Data Limited (ACN 087 759 171) v State of Queensland [2007] FCA 1639 ➤
Misuse of market power

ACCC v Dermalogica Pty Ltd [2005] FCA 152; (2005) 215 ALR 482 ➤
Resale price maintenance

ACCC v Eurong Beach Resort Ltd [2005] FCA 1900 ➤
Misuse of Market Power, Exclusionary Provisions, Exclusive Dealing and Anti-competitve agreements (agreed penalties)

▲ Apco Service Stations Pty Ltd v ACCC [2005] FCAFC 161 (Ballarat Petrol case)
Price fixing, meaning of understanding
(appeal from ACCC v Leahy Petroleum Pty Ltd [2004] FCA 1678)

ACCC v Australian Medical Association Western Australian Branch Inc [2003] FCA 686; (2003) ATPR 41-945 ➤
Price fixing, market definition

▲ ACCC v Australian Safeway Stores Pty Limited [2003] FCAFC 149 (30 June 2003)
Misuse of market power, exclusive dealing, price fixing

▲ Australian Gas Light Company (ACN 052 167 405) v Australian Competition & Consumer Commission (No. 3) [2003] FCA 1525
Mergers - declaration that merger would not SLC - declaration sought after ACCC refused to provide informal clearance

★ Boral Besser Masonry Limited (now Boral Masonry Ltd) v ACCC [2003] HCA 5 (7 February 2003)
Misuse of market power; predatory pricing

★ News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45
Deals with s 45's prohibition of exclusionary provisions in relation to South Sydney's exclusion from the national rugby competition in 2000.

★ Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 (11 December 2003)
Misuse of market power and exclusionary provisions

▲ Universal Music Australia Pty Ltd v ACCC [2003] FCAFC 193
Misuse of market power; exclusive dealing, purpose or effect of SLC

★ Visy Paper Pty Ltd v ACCC [2003] HCA 59
Section 45 and 47 - anti-overlap

ACCC v ABB Transmission and Distribution Limited [2001] FCA 383 ➤
Pecuniary penalty - joint submissions - factors relevant to appropriate penalty

ACCC v Boral Ltd (Includes Corrigendum dated 29 March 2001) [2001] FCA 30
Misuse of market power (appealed to High Court)

ACCC v Roche Vitamins Australia Pty Ltd [2001] FCA 150 ➤
Pecuniary penalty - factors relevant to appropriate penalty

★ Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 201 CLR 181 ➤
Restraint of Trade

★ Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13
Misuse of market power

★ Peters (WA) Ltd v Petersville Ltd [2001] HCA 45 ➤
Restraint of trade; s 4M

ACCC v Mobil Oil Australia Ltd (1997) ATPR 41–568
Price fixing. Pleadings. Parallel conduct.

▲ AW Tyree Transformers Pty Ltd and Wilson Transformer Co Pty Ltd (1997) ATPR (Com) 50–247
Authorisation - joint marketing scheme

▲ Re QIW Ltd (1995) 132 ALR 225
Merger, Market definition

▲ Gallagher v Pioneer Concrete (NSW) Pty Ltd (1993) 113 ALR 159
Anti-competitive agreements

▲ QIW Retailers Ltd v Davids Holdings [1993] FCA 204; (1993) ATPR 41-226
Mergers; Trade Practices Economics

▲ Stationers Supply Pty Ltd v Victorian Authorised Newsagents Associated Limited (1993) 44 FCR 35
Purpose or effect of substantially lessening competition (ss 45 and 47)

▲ TPC v Service Station Association Ltd (1993) 44 FCR 206
Anti-competitive agreements; Price Fixing

Berlaz Pty Ltd v Fine Leather Care Products Limited [1991] FCA 163; (1991) 13 ATPR 41-118  ➤ (Interlocutory proceedings)

'A distinction has to be drawn between purpose and consequence. The clear impression I have gained from the evidence is that FLC's purpose in acting as it did was not to get rid of or damage Berlaz as a competitor, although no doubt FLC knew that terminating the distributorship would be likely to have one or both of those results.' [Pincus J para 25]

▲ Eastern Express Pty Ltd v General Newspapers Pty Ltd (1991) 30 FCR 385 ➤
Predatory pricing

▲ Singapore Airlines Ltd v Taprobane Tours WA Pty Ltd (1991) 33 FCR 158
Market definition

▲ TPC v CSR Ltd [1990] FCA 521; (1991) ATPR 41-076
Misuse of market power - pecuniary penalties

★ Queensland Wire Industries v BHP (1989) 167 CLR 177 (High Court)
Misuse of market power - leveraging market power (section 46)

▲ Mark Lyons Pty Ltd v Bursill Sportsgear Pty Ltd (1987) 74 ALR 581
Exclusive dealing, market definition

Williams and Vajili Pty Ltd v Papersave Pty Ltd [1987] FCA 351 (Full Federal Court) ➤
Appeal dismissed
"Here we simply have a corporation which handled 60 per cent of the collection and treatment of waste computer paper, seeking to take a lease with no added special features, except a knowledge that a potential competitor also wanted the lease." (para 24)

Appeal from: Williams & Anor v Papersave Pty Ltd (1987) ATPR 40-818; [1987] FCA 162 (Sheppard J) ➤
Substantial market power and prohibited purpose existed, but not the taking advantage element; taking advantage of information, not taking advantage of market power

▲ TPC v Parkfield Operations Pty Ltd (1985) 5 FCR 140 ➤
Contract, arrangement or understanding - mutuality

▲ TPC v TNT Management Pty Ltd (1985) 6 FCR 1 ➤
Agreement or understanding - exclusionary provision - SLC - economic evidence

▲ O'Brien Glass Industries Ltd v Cool & Sons Pty Ltd (1983) 77 FLR 441 ➤
Market definition; exclusive dealing

▲ Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1983) 68 FLR 70 ➤
[Full Federal Court]
Meaning of 'substantial'

Appeal From: Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 62 FLR 437  ➤[Federal Court (Lockhart J)]
Meaning of 'substantial'

TPC v Allied Mills Industries Pty Ltd [1981] FCA 142; (1981) 60 FLR 38
Agreed penalties

Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 ➤
Secondary boycott - purpose - meaning of 'substantial'

▲ In Re Tooth and Co Limited; In Re Tooheys Limited (1979) ATPR 40–113 (Tribunal)
Market definition

▲ TPC v Nicholas Enterprises (1979) 40 FLR 83
Contract, arrangement or understanding

▲ Re Queensland Co-Op Milling Association Limited and Defiance Holdings Limited (QCMA) (1976) 8 ALR 481
Mergers; Trade Practices Economics

1972

Re Books [1972] 20 FLR 256
Resale Price Maintenance - Trade Practices Tribunal - Application for exemption from Restrictive Trade Practices Act 1971

★ Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69; (1972) 127 CLR 617 ➤
Resale price maintenance - recommended prices

1971

★ Buckley v Tutty (1971) 125 CLR 353
Restraint of trade

1963

Re British Basic Slag Ltd’s Agreements [1963] 2 All ER 807 [English]
Agreement

1950

★ Lindner v Murdock's Garage (1950) 83 CLR 628 ➤
Restraint of trade

1913

★ Attorney-General v The Adelaide Steamship Co Ltd (1913) 18 CLR 30
Australian Industries Preservation Act 1906 - Price fixing and market allocation - injury to the public

1911

★ R v Associated Northern Collieries (1911) 14 CLR 387
On the issue of establishing collusion

1894

▲ Nordenfelt v The Maxim Nordenfelt Guns & Ammunition Co Ltd [1894] AC 535 [English]
Restraint of trade