Australian Competition and Consumer Commission v PRK Corporation Pty Ltd [2009] FCA 715

Australian Competition and Consumer Commission v PRK Corporation Pty Ltd [2009] FCA 715

There was an admitted contravention of s 45(2) of the Trade Practices Act 1974 (Cth) in that the arrangement between Patrick and P&O was likely to substantially lessen competition in relevant terminal services markets. The penalties jointly proposed by the parties fall within a permissible range and are appropriate as they serve deterrence and reflect settlement, admissions, the absence of clandestinity, the circumstances of the conduct, and the size of affected markets.

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent: PRK Corporation Pty Ltd (formerly known as PRK Corporation Limited, Toll (PRK) Limited, Patrick Corporation Limited, Lang Corporation Limited) ACN 008 660 124; Second Respondent: Patrick Stevedores Holdings Pty Limited ACN 060 462 919; Third Respondent: Patrick Stevedores Operations Pty Limited ACN 065 375 840; Fourth Respondent: Patrick Stevedores Operations No 2 Pty Limited ACN 056 292 687; Fifth Respondent: Plzen Pty Limited ACN 065 905 571; Sixth Respondent: DP World Holdings (Australia) Limited (formerly known as P&O Australia Ltd) ACN 000 282 977; Seventh Respondent: DP World Australia Limited (formerly known as P&O Ports Limited) ACN 000 049 301; Eighth Respondent: P&O Wharf Management Pty Limited ACN 100 737 264; Ninth Respondent: Australian Amalgamated Terminals Pty Limited ACN 098 458 229; Tenth Respondent: Christopher Corrigan; Eleventh Respondent: Donald Smithwick; Twelfth Respondent: Andrew Burgess; Thirteenth Respondent: Timothy Blood
Jurisdiction
Australia
Judgment Date
03 July 2009
Procedural Posture
Civil / Judgment and Orders (settlement Approval; Penalty Determination)
Outcome
Pecuniary penalty imposed as jointly proposed; costs orders made; proceedings otherwise dismissed as against remaining respondents.
Legal Topics
Cartel Conduct, Pecuniary Penalty, Section 45(2) Trade Practices Act, Section 76 Trade Practices Act
Competition Law Trade Practices Cartel Conduct Pecuniary Penalty Section 45(2) Trade Practices Act Section 76 Trade Practices Act

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Parties

Australian Competition and Consumer Commission

Applicant

PRK Corporation Pty Ltd (formerly known as PRK Corporation Limited, Toll (PRK) Limited, Patrick Corporation Limited, Lang Corporation Limited) ACN 008 660 124

First Respondent

Patrick Stevedores Holdings Pty Limited ACN 060 462 919

Second Respondent

Patrick Stevedores Operations Pty Limited ACN 065 375 840

Third Respondent

Patrick Stevedores Operations No 2 Pty Limited ACN 056 292 687

Fourth Respondent

Plzen Pty Limited ACN 065 905 571

Fifth Respondent

DP World Holdings (Australia) Limited (formerly known as P&O Australia Ltd) ACN 000 282 977

Sixth Respondent

DP World Australia Limited (formerly known as P&O Ports Limited) ACN 000 049 301

Seventh Respondent

P&O Wharf Management Pty Limited ACN 100 737 264

Eighth Respondent

Australian Amalgamated Terminals Pty Limited ACN 098 458 229

Ninth Respondent

Christopher Corrigan

Tenth Respondent

Donald Smithwick

Eleventh Respondent

Andrew Burgess

Twelfth Respondent

Timothy Blood

Thirteenth Respondent

Procedural Posture

Civil / Judgment and Orders (settlement Approval; Penalty Determination)

Legal Issues

  1. 1 Whether certain arrangements and conduct contravened s 45(2) of the Trade Practices Act 1974 (Cth)
  2. 2 What is the appropriate pecuniary penalty under s 76 for such contravention
  3. 3 How a penalty jointly proposed by the parties should be treated by the Court

Ratio Decidendi

There was an admitted contravention of s 45(2) of the Trade Practices Act 1974 (Cth) in that the arrangement between Patrick and P&O was likely to substantially lessen competition in relevant terminal services markets. The penalties jointly proposed by the parties fall within a permissible range and are appropriate as they serve deterrence and reflect settlement, admissions, the absence of clandestinity, the circumstances of the conduct, and the size of affected markets.

Court Disposition

Pecuniary penalty imposed as jointly proposed; costs orders made; proceedings otherwise dismissed as against remaining respondents.

Orders

  • Patrick Stevedores Holdings Pty Limited (Second Respondent) to pay pecuniary penalty of $1,900,000 to the Commonwealth in four instalments over 18 months.
  • First to Fifth Respondents to pay ACCC a total of $100,000 towards costs in four instalments at the same times as the penalty.