Australian Competition and Consumer Commission v Yazaki Corporation (No 2) [2015] FCA 1304

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Yazaki Corporation (No 2) [2015] FCA 1304 Citation: Australian Competition and Consumer Commission v Yazaki Corporation (No 2) [2015] FCA 1304

Parties: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v YAZAKI CORPORATION and AUSTRALIAN ARROW PTY LTD ACN 071 956 057

File number: SAD 321 of 2012

Judge: BESANKO J

Date of judgment: 24 November 2015

Catchwords: COMPETITION – allegation of contraventions of the Competition and Consumer Act 2010 (Cth) and the Competition Code of Victoria – where the first respondent was incorporated in Japan – where the second respondent was incorporated in Australia – where the second respondent was the wholly owned subsidiary of the first respondent – whether the first respondent was carrying on business in Australia – whether the first respondent was otherwise connected with the jurisdiction of Victoria – whether there was a market in Australia for the goods supplied by the respondents – whether the real place of competitive activity was in Australia or Japan – Competition and Consumer Act 2010 (Cth), Competition Code of Victoria ss 4E, 5. COMPETITION – allegation of an overarching cartel agreement between the first respondent and another corporation in Japan – allegation that the first respondent and the other corporation entered into two separate agreements in relation to the supply of goods – whether the overarching cartel agreement and two agreements contained exclusionary provisions – whether the overarching cartel agreement and two agreements contained provisions controlling price – whether the first respondent gave effect to the overarching cartel agreement by making the two agreements – whether the first respondent gave effect to the two agreements by discussing, agreeing and submitting prices – whether the first respondent gave effect to the two agreements by directing the second respondent to submit the agreed prices in Australia – whether the submission of prices by the second respondent was an act of giving effect by the first respondent – where the first respondent admitted discussing, agreeing and submitting prices – whether the second respondent's continued supply of goods was an act of continuing to give effect by the first respondent – whether the first respondent continued to give effect to the two agreements by not disclosing the existence of the agreements and not competing – whether acts of omission can give effect to an agreement – Competition and Consumer Act 2010 (Cth), Competition Code of Victoria ss 4D, 44ZZRK, 45(2), 45A. COMPETITION – allegation that the second respondent and another corporation in Australia entered an agreement in relation to the supply of goods – whether the agreement contained exclusionary provisions – whether the agreement contained provisions controlling price – whether the second respondent gave effect to the agreement by discussing and agreeing prices – whether the second respondent gave effect to the two agreements made by the first respondent by submitting prices – whether the second respondent continued to give effect to the two agreements by not disclosing the existence of the agreements and not competing – whether a third party can give effect to a prohibited agreement – whether the third party is required to have knowledge of the agreement – Competition and Consumer Act 2010 (Cth), Competition Code of Victoria ss 4D, 44ZZRK, 45(2), 45A. PRACTICE AND PROCEDURE – objections to evidence – whether evidence should be excluded under the general discretion to exclude evidence – whether evidence was admissible as an opinion of conduct and discussions observed by the witness – Evidence Act 1995 (Cth) ss 78, 135. Held: First respondent contravened the Competition and Consumer Act 2010 (Cth) and the Competition Code of Victoria by giving effect to the overarching cartel agreement, and making, and giving effect to, the two separate agreements. Second respondent contravened the Competition and Consumer Act 2010 (Cth) and the Competition Code of Victoria by making and giving effect to the agreement in Australia.