Australian Competition and Consumer Commission v Korean Air Lines Co Ltd [2011] FCA 1360

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Korean Air Lines Co Ltd [2011] FCA 1360 Citation: Australian Competition and Consumer Commission v Korean Air Lines Co Ltd [2011] FCA 1360

Parties: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v KOREAN AIR LINES CO LTD (ARBN 003 938 261)

File number: NSD 220 of 2010

Judge: STONE J

Date of judgment: 30 November 2011

Catchwords: TRADE PRACTICES – price fixing – enforcement and remedies – application for imposition of pecuniary penalty and declarations pursuant to ss 76 and 80 Trade Practices Act 1974 (Cth) – contravention of s 45(2) admitted – joint submissions on proposed orders, including quantum of penalty – public interest in resolution of trade practices litigation – whether contravention of s 45(2) – whether quantum of penalty and declarations proposed appropriate – matters relevant to imposition of penalty – s 76 concerned with specific and general deterrence – not necessary to consider whether section also has punitive purpose – whether proposed penalty oppressive – whether proposed penalty within permissible range – likelihood of oppression slight in all the circumstances – Court satisfied orders sought should be made

Legislation: Evidence Act 1995 (Cth) s 191 Trade Practices Act 1974 (Cth), ss 45, 45A, 76 Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009

Cases cited: Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (2001) 23 ATPR 41-815 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) 26 ATPR 42-031 Australian Competition and Consumer Commission v J McPhee & Son (Australia) Pty Ltd (1998) 20 ATPR 41-628 Australian Competition and Consumer Commission v Midland Brick Company Pty Ltd (2004) 207 ALR 329 Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79 J McPhee & Son (Australia) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532 Minister for the Environment, Heritage & the Arts v PGP Developments Pty Ltd (2010) 183 FCR 10 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 Trade Practices Commission v CSR Limited (1991) 13 ATPR 41-076 Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 Trade Practices Commission v Sony (Aust) Pty Ltd (1990) 12 ATPR 41-053 Trade Practices Commission v Stihl Chain Saws (Aust) Pty Limited (1978) 2 ATPR 40-091