Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi S.R.L. (No 13) [2017] FCA 851

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi S.R.L. (No 13) [2017] FCA 851 File number: SAD 145 of 2009

Judge: BESANKO J

Date of judgment: 28 July 2017

Catchwords: TRADE PRACTICES – consideration of an application seeking declarations and an injunction against the Respondent – where terms of the declaration are restricted to one particular agreement – where appropriate case for declarations of contravening conduct – whether the Court should exercise its power to grant an injunction against the Respondent – where contravening conduct was giving effect to a significant cartel arrangement – where conduct occurred some time ago. TRADE PRACTICES – consideration of s 76 of the Competition and Consumer Act 2010 (Act) and the appropriate penalty or penalties in respect of contraventions – where contravener engaged in cartel conducted related to the supply of land-based electrical cables, submarine-based electrical cables and accessories – determination of maximum penalty – whether maximum penalty will properly reflect the gravity and seriousness of the contravening conduct. TRADE PRACTICES – consideration of how many contraventions are subject to the maximum penalty – whether contraventions are to be considered part of the same conduct within s 76(3) of the Act – where the Respondent's conduct reflects a single course of conduct between the cartel participants. TRADE PRACTICES – consideration of the parity principle and the penalty imposed on another respondent – where Court should have regard to the penalty imposed – where circumstances are such that a close approximation with the penalty imposed is not required or appropriate. PRACTICE AND PROCEDURE – where contravening conduct was deliberate and premeditated – where the conduct occurred over a relatively short period of time – where Respondent did not secure the contract – where Respondent has not been found guilty of similar conduct before or since the contravening conduct – where Respondent is a large global group with substantial market shares – where conduct engaged in by senior employees of the company – where Respondent has shown no contrition for the contravening conduct and has not cooperated in any relevant sense. COSTS – consideration of an application by the Second Respondent seeking costs against the Applicant pursuant to r 25.14(2) of the Federal Court Rules 2011 (Cth) – where the Applicant did not act unreasonably in rejecting the Second Respondent's offer – where the case was complex and the question of attribution may turn on quite fine factual distinctions.