Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617

TRADE PRACTICES – cartel conduct – Visy companies and Amcor companies held 90 per cent of the corrugated fibreboard packaging market in Australia – between January 2000 and October 2004 Visy and Amcor engaged in price-fixing and market sharing contrary to s 45 of Trade Practices Act 1974 (Cth) – Amcor received conditional immunity from action by the Australian Competition and Consumer Commission – Commission brought action against Visy companies and three of its senior officers four categories of contraventions: Over-arching Understanding in 2000 to maintain market share and increase prices; Annual Price Increase Understandings each year for 2000 to 2003, Customer Price Understandings and Compensation Understandings – respondents admitted liability – parties submitted an agreed statement of facts Held 1. Visy committed 69 contraventions of the Trade Practices Act; 2. Pecuniary penalties imposed on Visy for 37 contraventions that came from different conduct for the purposes of s 76(3); 3. Penalty of $36 million imposed for the 37 contraventions; 4. Mr Pratt was knowingly concerned in Visy's contraventions, however, no pecuniary penalty against him because as owner of Visy he will bear the burden of the corporate penalty; 5. Mr Debney was knowingly concerned in 14 contraventions; penalty of $1.5 million; 6. Mr Carroll was knowingly concerned in 49 contraventions; penalty of $500,000. Corporations Act 2001 (Cth), ss 199A(2) Evidence Act 1995 (Cth) s 191 Industrial Relations Reform Act 1993 (Cth) s 46 Sherman Act 15 U.S.C. Trade Practices Act 1974 (Cth) ss 4D, 45, 45A, 76, 77A, 77B, 80 Trade Practices Legislation Amendment Act (No. 1) 2006 (Cth), Sch 9 Pt 1. Trade Practices Legislation Amendment Act 1992 (Cth) s 10 Australian Competition and Consumer Commission v Commercial and General Publications Pty Ltd (No 2) (2002) ATPR 41-905 cited Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2000) ATPR 41-777 cited Australian Competition and Consumer Commission v J McPhee & Son (Australia) Pty Ltd (No 5) (1998) ATPR 41-628 cited Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd (1996) ATPR 41-515 cited Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 2) [2007] FCA 444 referred to Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993 cited The Queen v Shannon (1979) 21 SASR 442 Trade Practices Commission v Axive Pty Ltd (1994) ATPR 41-368 cited Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 cited Warner, K Sentencing in Tasmania, 2nd ed, The Federation Press, 2002 Organisation for Economic Co-operation and Development, Hard Core Cartels – Third Report on the Implementation of the 1988 Recommendation, Paris, 2006 The Dawson Committee, Review of the Competition Provisions of the Trade Practices Act, April 2003 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v VISY INDUSTRIES HOLDINGS PTY LIMITED & ORS (No 3) VID 1650 OF 2005