Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi S.R.L. (No 12) [2016] FCA 822

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi S.R.L. (No 12) [2016] FCA 822 File number: SAD 145 of 2009

Judge: BESANKO J

Date of judgment: 20 July 2016

Catchwords: COMPETITION – alleged contravention of Trade Practices Act 1974 (Cth) and Competition Codes of the States – price fixing and market sharing – where relevant markets are for land cables and submarine cables in Australia – where alleged overarching international cartel arrangement or understanding – whether subsequent alleged arrangement or understanding relating to a tender on a specific project contravened Act – whether subsequent alleged arrangement or understanding gave effect to alleged overarching cartel arrangement or understanding – whether issuing a price guidance and submitting a tender gave effect to alleged arrangements or understandings – Trade Practices Act 1974 (Cth), ss 45(2)(a), 45(2)(b) COMPETITION – price fixing and market sharing – consideration of elements of prohibited arrangement or understanding – whether parties undertook the level of commitment necessary for purposes of establishing an arrangement or understanding – whether there was competition in a market in Australia – whether the arrangement or understanding contained an exclusionary provision – whether there are "particular persons or classes of persons" for purposes of s 4D - whether arrangement or understanding had the purpose or was likely to have the effect of fixing or controlling prices – Trade Practices Act 1974 (Cth), ss 45, 45A, 4D COMPETITION – price fixing and market sharing – attribution of conduct – whether natural persons alleged to be involved in conduct were representatives of company respondents – consideration of agency principles – consideration of principles in Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 - where respondent companies part of large company groups – where alleged natural persons not employees of respondent company – where no delegation of authority or powers or functions to alleged natural persons – Trade Practices Act 1974 (Cth), s 84(2) COMPETITION – extra-territorial application of Trade Practices Act 1974 (Cth) – where alleged conduct was engaged in outside of Australia – whether respondents were foreign corporations carrying on business within Australia – whether respondent carried on business within Australia indirectly through a subsidiary in Australia – whether respondent carried on business within Australia directly by providing services to a subsidiary in Australia - Trade Practices Act 1974 (Cth), s 5 EVIDENCE – objections to evidence – whether evidence should be excluded under the general discretion to exclude evidence – whether evidence was admissible as an opinion based on what a person saw, heard or otherwise perceived – Evidence Act 1995 (Cth) ss 135, 78.