Australian Competition & Consumer Commission v Japan Airlines International Co Ltd [2011] FCA 365

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Japan Airlines International Co Ltd [2011] FCA 365 Citation: Australian Competition & Consumer Commission v Japan Airlines International Co Ltd [2011] FCA 365

Parties: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v JAPAN AIRLINES INTERNATIONAL CO LTD (ARBN 000 564 358)

File number(s): NSD 535 of 2010

Judge: RYAN J

Date of judgment: 11 April 2011

Date of hearing: 11 April 2011

Place: Melbourne

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 2

Counsel for the Applicant: Mr N O'Bryan SC

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr D Shavin QC with Mr D Star

Solicitor for the Respondent: Norton Rose

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION NSD 535 of 2010

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: JAPAN AIRLINES INTERNATIONAL CO LTD (ARBN 000 564 358)

Respondent

JUDGE: RYAN J DATE OF ORDER: 11 APRIL 2011 WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The respondent pay the Commonwealth of Australia within 14 days of the date this order is made a pecuniary penalty in the total sum of $5.5 million in respect of contraventions of section 45(2)(a)(ii) and (b)(ii) of the Trade Practices Act 1974, now the Competition and Consumer Act 2010 (the Act), in that: 1.1. the respondent: 1.1.1. in or about December 2003, reached understandings with certain of its competitors for the supply of services, from Singapore to destinations throughout the world including Australia, for the carriage of air cargo containing a provision that they would each impose a charge of a specified amount, described as a fuel surcharge, in respect of those services; and 1.1.2. on or about 23 January 2003, reached an understanding with certain of its competitors for the supply of services from Singapore to destinations throughout the world including Australia for the carriage of air cargo containing a provision that they would not discount a charge, described as an insurance and security surcharge, in respect of those services; 1.2. the provisions of the said understandings had the effect of fixing, maintaining or controlling prices for the said services within the meaning of section 45A of the Act and are therefore deemed to substantially lessen competition within the meaning of section 45(2)(a)(ii) and (b)(ii) of the Act; and 1.3. the respondent gave effect to those provisions: 1.3.1. of the understandings referred to in 1.1.1 in the period from December 2003 to October 2005 inclusive; and 1.3.2. of the understanding referred to in 1.1.2 from January 2003 until no later than October 2006 inclusive. AND THE COURT ORDERS BY CONSENT THAT: 2. The respondent be restrained, for a period of five years from the date of this order from making, arriving at, or giving effect to, any contract, arrangement or understanding with any of its competitors for the supply of services of the carriage of international air cargo, containing provisions which have the effect of fixing, controlling or maintaining the price or any part of the price at which it or any of them will supply those services in competition with each other unless: 2.1. the said contract, arrangement or understanding does not involve or relate to the carriage of goods to or from Australia; 2.2. the said contract, arrangement or understanding is necessary for the purpose of interlining between two or more carriers in the course of supplying services of the carriage of international air cargo; or 2.3. the respondent is specifically authorised to do so under section 88 of the Act or any other Australian statute in accordance with section 51 of the Act. 3. The respondent be restrained for a period of five years from the date of this order, from entering into, or giving effect to, any contract, arrangement or understanding with any of its competitors for the supply of services for the carriage of air cargo containing provisions to the effect that any of them will propose, develop, prepare, follow, implement, adopt or otherwise use any index, model, methodology or formula for the change of prices or any part of prices to be charged by any of them for services provided or which would otherwise likely be provided in competition with any other of them unless: 3.1. the said contract, arrangement or understanding does not involve or relate to the carriage of goods to or from Australia; 3.2. the said contract, arrangement or understanding is necessary for the purpose of interlining between two or more carriers in the course of supplying services of the carriage of international air cargo; or 3.3. the respondent is specifically authorised to do so under section 88 of the Act or any other Australian statute in accordance with section 51 of the Act. 4. The respondent pay the applicant within 14 days of the date this order is made a contribution toward its costs of and incidental to these proceedings in the sum of $200,000. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.