ACCC v Simsmetal Ltd [2000] FCA 818

FEDERAL COURT OF AUSTRALIA

ACCC v Simsmetal Ltd [2000] FCA 818

TRADE PRACTICES – penalties – attempt to enter into market-sharing arrangement – previous contravention

Trade Practices Act 1974 (Cth) s 76(1)(d) Trade Practices Commission v CSR Limited (1991) ATPR 41-076 at 52,152-3 mentioned NW Frozen Foods Pty Ltd v Australian Competition & Consumer Commission (1997) 71 FCR 285 mentioned J McPhee & Son (Australia) Pty Ltd v Australian Competition & Consumer Commission (2000) ATPR 41-758, [2000] FCA 365 mentioned Trade Practices Commission v Simsmetal Limited and Ors (1996) ATPR 41-449 at 41,512 mentioned Pye Industries Sales Pty Ltd v Trade Practices Commission (1979) ATPR 40-124 at 18,326 mentioned In re Supply of Ready Mixed Concrete (No 2) [1995] 1 AC 456 at 465 mentioned Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 at 508-512 mentioned AUSTRALIAN COMPETITION & CONSUMER COMMISSION v SIMSMETAL LIMITED & ORS NO. AG 14 OF 1998 HEEREY J 20 JUNE 2000 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY AG 14 of 1998

BETWEEN: AUSTRALIAN COMPETITION & CONSUMER COMMISSION

Applicant

AND: SIMSMETAL LIMITED (ACN 008 634 526)

First Respondent

PETER JAKSA

Second Respondent

JOHN PHILIP BABISTER

Third Respondent

JUDGE: HEEREY J

DATE OF ORDER: 20 JUNE 2000

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. Leave be granted to the applicant to discontinue this proceeding as against the second and third respondents. 2. Leave be granted to the applicant to file and serve a further amended application on 7 June 2000 in the form of exhibit "MJC-2" to the affidavit of Meredith Jane Cole affirmed on 2 June 2000. 3. Leave be granted to the applicant to file and serve a second further amended statement of claim on 7 June 2000 in the form of exhibit "MJC-3" to the affidavit of Meredith Jane Cole affirmed on 2 June 2000. 4. The first respondent, pursuant to s 76 of the Trade Practices Act 1974 (Cth) pay to the Commonwealth of Australia a pecuniary penalty in the sum of $2 million within twenty-eight days of the date of this order. 5. Declare that the first respondent attempted, on 20 July 1995 and 4 August 1995, to make a contract, arrangement, or arrive at an understanding with a competitor, Philip Buck, which contained provisions which had the purpose, or a substantial purpose of, preventing, restricting or limiting the first respondent and Philip Buck from acquiring ferrous scrap in South Australia from each others' suppliers, and thereby attempted to make a contract, arrangement or arrive at an understanding which, if successful, would have contained exclusionary provisions in contravention of s 45(2)(a)(i) of the Act. 6. Except in relation to conduct referred to in ss 45(6), 45(8) and 45(9) of the Act, the first respondent, whether by its directors, servants or agents or otherwise howsoever, be restrained for three years from: (a) attempting to make or arrive at; (b) making or arriving at; or (d) giving effect to: any contract, arrangement or understanding with any person who is or would otherwise be likely to be in competition with the first respondent, which contains a provision that has the purpose, or a substantial purpose of, preventing, restricting or limiting the first respondent, any body corporate related to the first respondent, and/or any party to the contract, arrangement or understanding, from acquiring ferrous scrap in Australia from particular persons or classes of persons either absolutely or in particular circumstances or on particular conditions. 7. The first respondent pay to the Commonwealth of Australia a contribution to the applicant's costs of and incidental to the proceedings, such contribution agreed in the sum of $100,000 within twenty-eight days of the date of this order. 8. The first respondent undertakes to the Court that the first respondent will, as soon as possible: (a) comprehensively review its current Trade Practices Compliance Program; and (b) use reasonable endeavours to ensure that the Program meets the Australian Standard for such programs, being AS 3806-1998, and be tailored to suit the first respondent's circumstances. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.