Australian Competition and Consumer Commission v Australasian Food Group Pty Ltd [2022] FCA 308

Federal Court of Australia

Australian Competition and Consumer Commission v Australasian Food Group Pty Ltd [2022] FCA 308 File number: VID 738 of 2020

Judgment of: MOSHINSKY J

Date of judgment: 25 March 2022

Catchwords: COMPETITION – exclusive dealing – where the respondent was an Australian manufacturer and wholesale supplier of single serve ice cream products – where the respondent acquired services from a distributor (PFD) on condition that PFD would not, without the respondent's prior written consent, sell or distribute single serve ice cream products that competed with the respondent's single serve ice cream products in certain geographic areas – where the respondent admitted that it had contravened s 47(1) of the Competition and Consumer Act 2010 (Cth) – where the parties jointly proposed a pecuniary penalty of $12 million – applicable principles relating to the imposition of pecuniary penalties – whether proposed pecuniary penalty appropriate – held: pecuniary penalty of $12 million appropriate

Legislation: Competition and Consumer Act 2010 (Cth), ss 4E, 47, 76, 86C

Cases cited: Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2013) 310 ALR 165 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 Australian Competition and Consumer Commission v Flight Centre Travel Group Ltd (2017) 261 CLR 203 Australian Competition and Consumer Commission v Pacific National Pty Ltd (2020) 277 FCR 49 Australian Competition and Consumer Commission v Pfizer Australia Pty Ltd (2015) 323 ALR 429 Australian Securities and Investments Commission v Aware Financial Services Australia Ltd [2022] FCA 146 Australian Wool Innovation Ltd v Newkirk [2005] ATPR 42-053; [2005] FCA 290 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) 44 ALR 173 Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32 Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 Parmalat Australia Pty Ltd v VIP Plastic Packaging Pty Ltd (2013) 210 FCR 1 Re Queensland Co-Operative Milling Association Ltd (1976) 8 ALR 481 Rural Press Ltd v Australian Competition and Consumer Commission (2002) 118 FCR 236 Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 Seven Network Ltd v News Ltd (2009) 182 FCR 160 Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] ATPR 41-783; [2000] FCA 1381 Trade Practices Commission v Allied Mills Industries Pty Ltd (No 4) (1981) 60 FLR 38; 37 ALR 256 Trade Practices Commission v CSR Ltd [1991] ATPR 41-076; [1990] FCA 762 Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529