Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73

Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73

Knowledge of the cartel agreement is not an essential legal element for the entity to 'give effect to' a prohibited arrangement under s 45(2)(b); conduct implementing or enacting the agreement is sufficient. For exclusionary provision contraventions (ss 45(2)(a)(i), 45(2)(b)(i)), it is not necessary to prove a market in Australia, only that parties are competitive with each other per s 4D. Calculation of the maximum penalty under s 76(5) should include the turnover of the contravening corporation and its related bodies corporate. Separate penalties attach to distinct acts of contravention unless they are the same or a single course of conduct; the overall penalty must reflect the...

Parties
Appellant/cross Respondent: Australian Competition and Consumer Commission; First Respondent/cross Appellant: Yazaki Corporation; Second Respondent/cross Appellant: Australian Arrow Pty Limited (ACN 071 956 057)
Jurisdiction
Australia
Judgment Date
16 May 2018
Procedural Posture
Appeal and Cross Appeal (civil Penalty – Competition Law) / Full Federal Court Appeal
Outcome
Appeal allowed in part; cross-appeal and notice of contention dismissed.
Legal Topics
Cartel Conduct, Exclusionary Provisions, Market Definition, Pecuniary Penalties, Statutory Interpretation, Course of Conduct Principle, Costs
Competition Law Commercial Law Cartel Conduct Exclusionary Provisions Market Definition Pecuniary Penalties Statutory Interpretation Course of Conduct Principle +1 more

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Parties

Australian Competition and Consumer Commission

Appellant/cross Respondent

Yazaki Corporation

First Respondent/cross Appellant

Australian Arrow Pty Limited (ACN 071 956 057)

Second Respondent/cross Appellant

Procedural Posture

Appeal and Cross Appeal (civil Penalty – Competition Law) / Full Federal Court Appeal

Legal Issues

  1. 1 Whether knowledge is an essential element for 'giving effect to' a cartel agreement under s 45(2)(b) of the Competition and Consumer Act 2010 (Cth)
  2. 2 Whether a relevant market in Australia is required for contravention of ss 45(2)(a)(i) and 45(2)(b)(i) (exclusionary provisions)
  3. 3 Proper construction of s 76(5) for calculating the maximum penalty—scope of annual turnover

Ratio Decidendi

Knowledge of the cartel agreement is not an essential legal element for the entity to 'give effect to' a prohibited arrangement under s 45(2)(b); conduct implementing or enacting the agreement is sufficient. For exclusionary provision contraventions (ss 45(2)(a)(i), 45(2)(b)(i)), it is not necessary to prove a market in Australia, only that parties are competitive with each other per s 4D. Calculation of the maximum penalty under s 76(5) should include the turnover of the contravening corporation and its related bodies corporate. Separate penalties attach to distinct acts of contravention unless they are the same or a single course of conduct; the overall penalty must reflect the...

Court Disposition

Appeal allowed in part; cross-appeal and notice of contention dismissed.

Orders

  • Time for the first respondent to file and serve notice of contention extended to 13 March 2018, with leave to rely on it.
  • Appeal against orders of 9 May 2017 allowed in part.