Australian Competition and Consumer Commission v Olex Australia Pty Ltd [2017] FCA 222

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Olex Australia Pty Ltd [2017] FCA 222 File number: VID 725 of 2014

Judge: BEACH J

Date of judgment: 9 March 2017

Catchwords: COMPETITION – controlling supply – market sharing – price fixing – whether there was an arrangement or understanding which contained a cartel provision – whether parties reached the necessary commitment that gave rise to an arrangement or understanding – whether there was a proscribed purpose to control supply, allocate the market and/or fix prices – whether there was an exclusionary provision for the purposes of s 4D of the Competition and Consumer Act 2010 (Cth) – whether the respondents were "in competition with each other" – consideration of no case submission – circumstantial evidence – exclusive dealing "anti-overlap" defence – collective acquisition defence – no contravention of the prohibition on cartel conduct – application dismissed COMPETITION – bid rigging – whether there was an arrangement or understanding which contained a bid rigging provision – whether there was a change in the pleaded case in relation to the characterisation of the bidding provision – whether the relevant purpose is in relation to a successful "bid" or successful "party" – resale price maintenance "anti-overlap" defence – no contravention of the prohibition on cartel conduct – application dismissed

Legislation: Competition and Consumer Act 2010 (Cth) ss 4, 4C, 4D, 4F, 44ZZRB, 44ZZRD, 44ZZRJ, 44ZZRK, 44ZZRR, 44ZZRS, 44ZZRV, 45, 47, 96 Evidence Act 1995 (Cth) s 140(2)