Australian Competition and Consumer Commission v Yazaki Corporation (No 3) [2017] FCA 465

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Yazaki Corporation (No 3) [2017] FCA 465 File number: SAD 321 of 2012

Judge: BESANKO J

Date of judgment: 9 May 2017

Catchwords: TRADE PRACTICES – Consideration of s 76 of the Competition and Consumer Act 2010 (Act) and appropriate penalty or penalties in respect of contraventions of s 45(2) – where contravener engaged in cartel conduct related to the supply of automobile parts – determination of maximum penalty – where parties have not sought to prove the value of the benefit reasonably attributable to the contraventions – where dispute as to the amount of annual turnover attributable to the contravener. TRADE PRACTICES – Consideration of how many contraventions are subject to the maximum penalty – whether contraventions are to be considered as one act within s 76(1A)(b) of the Act – whether the contraventions are to be considered part of the same conduct within s 76(3) of the Act – where conduct can be divided into two broad categories of conduct with different qualities – where pecuniary penalty for the second course of conduct significantly lower to reflect degree of connection between all of the conduct. STATUTORY INTERPRETATION – Consideration of term "enterprise" in s 76(5)(d) of the Act – where most natural meaning of the term 'enterprise' is business – whether supplies made by a subsidiary are made in connection with a business carried on by the contravener for the purposes of determining "annual turnover" in s 76(5) of the Act. PRACTICE AND PROCEDURE – Where the covert cartel conduct was deliberate, sophisticated and devious – where only limited conduct connected to Australia – where conduct nonetheless bore upon substantial financial transactions between substantial corporations in Australia – where no previous contraventions of the Act – where no suggestion contravener voluntarily undertook compliance training programs – where it is unclear whether punishment imposed in foreign jurisdiction related to conduct the subject of the Australian proceedings.