Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited [2016] FCA 1516

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited [2016] FCA 1516 File number(s): NSD 2035 of 2016 NSD 2036 of 2016

Judge(s): WIGNEY J

Date of judgment: 14 December 2016

Catchwords: COMPETITION – contracts, arrangements or understandings containing cartel provisions – where two major Australian banks attempted to make arrangements involving the manipulation of a financial benchmark and thereby the fixing of the price of foreign exchange forward contracts – where the banks admitted that they attempted to contravene s 44ZZRJ of the Competition and Consumer Act 2010 (Cth) – pecuniary penalties under s 76 of the Competition and Consumer Act 2010 (Cth) – relevant principles – where the Australian Competition and Consumer Commission and the banks proposed agreed pecuniary penalties – relevant principles in determining whether agreed penalties should be accepted – Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 applied

Legislation: Competition and Consumer Act 2010 (Cth), ss 44ZZRD(1), 44ZZRD(2)(a)-(b), 44ZZRD(4)(a), 44ZZRD(4)(c), 44ZZRJ, 76(1)(a)-(b), 76(1A)(aa)

Cases cited: Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) [2002] FCA 559 Australian Competition and Consumer Commission v Apple Pty Limited [2012] FCA 646 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238 Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2016] FCA 453 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330 Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd [2001] FCA 1716 Australian Competition and Consumer Commission v J McPhee & Son (Australia) Pty Ltd (No 5) [1998] FCA 310 Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Securities and Investments Commission v Adler (No 5) [2002] NSWSC 483 Australian Securities and Investments Commission v GE Capital Finance Australia [2014] FCA 701 Australian Securities and Investments Commission v Southcorp Ltd (2003) 130 FCR 406 Australian Securities and Investments Commission, in the matter of Chemeq Limited (ACN 009 135 264) v Chemeq Limited (ACN 009 135 264) [2006] FCA 936 Barbaro v The Queen (2014) 253 CLR 58 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 Markarian v The Queen (2005) 228 CLR 357 Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20 TPG Internet Pty Ltd v Australian Competition and Consumer Commission (2012) 210 FCR 277 Trade Practices Commission v CSR Ltd [1990] FCA 521 Trade Practices Commission v Stihl Chainsaws (Aust) Pty Ltd (1978) ATPR 40-09