Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [2019] FCAFC 83

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [2019] FCAFC 83 Appeal from: Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 4) [2017] FCA 1590

File number: NSD 202 of 2018

Judges: MIDDLETON, PERRAM AND BROMWICH JJ

Date of judgment: 24 May 2019

Catchwords: COMPETITION – restrictive trade practices – cartel conduct – whether Second Respondent contravened ss 45(2) or 44ZZRK of the Trade Practices Act 1974 (Cth) – where Second Respondent and two other suppliers of laundry detergent in Australia transitioned to ultra-concentrated detergent and ceased supply of standard concentrates at approximately same time – whether Second Respondent entered into arrangement or understanding with other suppliers that included exclusionary provisions or provisions which had the purpose, or had or were likely to have, effect of substantially lessening competition APPEAL – whether trial judge identified correct principles concerning arrangements and understandings under the Trade Practices Act 1974 (Cth) but erroneously required Appellant to prove existence of a contract – whether trial judge erroneously approached issue of parallel conduct APPEAL – nature of appellate review – where Appellant alleged factual errors in trial judgment and sought new findings of fact – consideration of inferences capable of being drawn from facts – whether inferences drawn by trial judge so wrong as to fall into error – application of Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 and Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 358 ALR 683