Australian Competition and Consumer Commission v BlueScope Steel Limited (No 5) [2022] FCA 1475

FEDERAL COURT OF AUSTRALIA Australian Competition and Consumer Commission v BlueScope Steel Limited (No 5) [2022] FCA 1475 File number: VID 932 of 2019

Judgment of: O'BRYAN J

Date of judgment: 9 December 2022

Catchwords: COMPETITION – alleged attempts to induce certain suppliers of flat steel products to contravene the Competition and Consumer Act 2010 (Cth) (Act) by arriving at an understanding containing cartel provisions – cartel provisions being provisions to control or maintain the price of flat steel products supplied in Australia – whether putative counterparties to the understandings were or were likely to be in competition with each other at the relevant time – market definition – consideration of product and functional dimensions of the markets for the supply of flat steel products – whether overseas steel mills compete with domestic producer – whether respondents intended to induce understandings containing cartel provisions – whether an attempt to induce an understanding requires one party to seek a commitment from the other – means by which an understanding may be reached STATUTORY INTERPRETATION – meaning of "attempted to induce" a contravention in s 76(1)(d) of the Act – meaning of "understanding" in Pt IV of the Act – meaning of "fixing, controlling or maintaining" prices in Pt IV of the Act – whether s 84(1) of the Act (attribution of state of mind) is applicable to an attempt to induce a contravention within s 76(1)(d) of the Act

Legislation: Competition and Consumer Act 2010 (Cth) ss 2, 4(1), 4F, 44ZZRB, 44ZZRC, 44ZZRD, 44ZZRJ, 44ZZRK, 48, 76, 84, 86E, 96, 97 Criminal Code Act 1995 (Cth) Sch 1 (Commonwealth Criminal Code) s 11.1 Evidence Act 1995 (Cth) ss 81, 135, 136, 140 Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 (Cth) Trade Practices Revision Act 1986 (Cth) Explanatory Memorandum, Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 (Cth) Explanatory Memorandum, Trade Practices Revision Bill 1986 (Cth)