Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 4) [2017] FCA 1590

Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 4) [2017] FCA 1590

The applicant (ACCC) failed to discharge the burden of proving on the balance of probabilities that PZ Cussons entered into or arrived at any arrangement or understanding with Colgate and Unilever of the kinds alleged containing exclusionary provisions or provisions with the purpose or effect of substantially lessening competition. The evidence, largely circumstantial, did not establish any ‘meeting of minds’ or obligation between Cussons and competitors, and the court was not satisfied that simultaneous conduct resulted from an unlawful arrangement rather than independent commercial decisions and retailer pressures.

Jurisdiction
Australia
Judgment Date
22 December 2017
Procedural Posture
Civil / Trial Judgment
Outcome
Application dismissed with costs (insofar as it concerns PZ Cussons Australia Pty Ltd).
Legal Topics
['cartel Conduct' 'restrictive Trade Practices' 'section 45(2) Trade Practices Act' 'exclusionary Provisions' 'substantial Lessening of Competition' 'arrangements or Understandings' 'parallel Conduct' 'hub and Spoke Arrangements']
['competition Law' 'trade Practices'] ['cartel Conduct' 'restrictive Trade Practices' 'section 45(2) Trade Practices Act' 'exclusionary Provisions' 'substantial Lessening of Competition' 'arrangements or Understandings' 'parallel Conduct' 'hub and Spoke Arrangements']

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Procedural Posture

Civil / Trial Judgment

Legal Issues

  1. 1 ['Did PZ Cussons Australia Pty Ltd enter into an arrangement or understanding with competitors that included exclusionary provisions or that had the purpose or likely effect of substantially lessening competition in the market for laundry detergents in Australia?' 'Did PZ Cussons contravene ss 44ZZRK or 45(2) of the Trade Practices Act 1974 (Cth)?']

Ratio Decidendi

The applicant (ACCC) failed to discharge the burden of proving on the balance of probabilities that PZ Cussons entered into or arrived at any arrangement or understanding with Colgate and Unilever of the kinds alleged containing exclusionary provisions or provisions with the purpose or effect of substantially lessening competition. The evidence, largely circumstantial, did not establish any ‘meeting of minds’ or obligation between Cussons and competitors, and the court was not satisfied that simultaneous conduct resulted from an unlawful arrangement rather than independent commercial decisions and retailer pressures.

Court Disposition

Application dismissed with costs (insofar as it concerns PZ Cussons Australia Pty Ltd).

Orders

  • ['The applicant’s originating application filed 12 December 2013 be dismissed insofar as it seeks relief against or concerning the second respondent, PZ Cussons Australia Pty Ltd, or has not otherwise previously been disposed of by order of the Court.' 'The applicant pay the second respondent’s costs.' 'The time...