Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73 Appeal from: Australian Competition and Consumer Commission v Yazaki Corporation (No 2) [2015] FCA 1304 Australian Competition and Consumer Commission v Yazaki Corporation (No 3) [2017] FCA 465

File number: SAD 139 of 2017

Judges: ALLSOP CJ, MIDDLETON AND ROBERTSON JJ

Date of judgment: 16 May 2018

Catchwords: COMPETITION – contraventions of the Competition and Consumer Act 2010 (Cth) and the Competition Code as applied as a law of Victoria by the Competition Policy Reform (Victoria) Act 1995 (Vic) – consideration of s 45(2)(b) – whether the second respondent gave effect to the overarching and other cartel agreements, arrangements or understandings made by the first respondent by submitting prices – whether a third party must have knowledge in order to give effect to relevant cartel conduct – the meaning of "give effect to" COMPETITION – consideration of exclusionary provisions and contravention of ss 45(2)(a)(i) and 45(2)(b)(i) of the Competition and Consumer Act 2010 (Cth) – consideration of ss 45(3), 4D and 4E – whether contravention must be between competitors who were in competition in a relevant market in Australia – market definition – whether there was a relevant market in Australia STATUTORY INTERPRETATION – construction of a statutory definition – competition – market – exclusionary provision – common law presumptions regarding the interpretation of penal legislation and regarding the extraterritorial operation of legislation – reliance on extrinsic materials – whether s 45(3) was applicable to ss 45(2)(a)(i) and 45(2)(b)(i) of the Competition and Consumer Act 2010 (Cth) COMPETITION – construction of s 76(5) of the Competition and Consumer Act 2010 (Cth) – appropriate penalty or penalties in respect of contraventions of s 45(2) – determination of maximum penalty – where parties have not sought to prove the value of the benefit reasonably attributable to the contraventions – construction of the words "the body corporate" – construction of the word "enterprise" – whether supplies made by a subsidiary are made in connection with a business carried on by the contravener for the purposes of determining "annual turnover" COMPETITION – consideration of how many contraventions are subject to the maximum penalty – whether contraventions are to be considered as one act within s 76(1A)(b) of the Competition and Consumer Act 2010 (Cth) – whether the contraventions are to be considered part of the same conduct within s 76(3) of the Competition and Consumer Act 2010 (Cth) – consideration of course of conduct and totality principles – whether all of the contravening acts were directed toward the purpose of a single underlying wrong and therefore should be treated as a single course of conduct COMPETITION – refixing of penalty – where first respondent is a large multinational supplier with considerable market share – where aggregate maximum penalty and characterisation of conduct is different from that determined by the primary judge – where prohibited arrangement longstanding, significant and involved senior management COSTS – where primary judge reduced costs order in favour of the appellant due to failure to establish a particular factual issue at first instance – whether appellant should be awarded 100% of its costs at first instance