Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617

Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617

Visy, through its companies and senior officers, engaged in price fixing, market sharing and related cartel conduct over nearly five years in relation to the supply of corrugated fibreboard packaging. These arrangements constituted 69 contraventions of s 45 TPA, with penalties to be imposed for 37 contraventions pursuant to s 76(3). The conduct was deliberate, covert, and extended over a substantial period involving senior management, justifying the substantial pecuniary penalties and other relief ordered.

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent: Visy Industries Holdings Pty Limited; Second Respondent: Visy Industries Australia Pty Limited; Third Respondent: Visy Board Pty Limited; Fourth Respondent: Richard Pratt; Fifth Respondent: Harry Debney; Sixth Respondent: Rod Carroll
Jurisdiction
Australia
Judgment Date
02 November 2007
Procedural Posture
Civil Penalty Proceeding / Judgment, Final Orders
Outcome
Declarations made of 69 contraventions by Visy, with pecuniary penalties for 37 distinct contraventions (per s 76(3)). Pecuniary penalties imposed on Debney and Carroll. Injunctive and compliance program orders. Costs ordered.
Legal Topics
Cartel Conduct, Price Fixing, Market Sharing, Accessories Liability, Pecuniary Penalties, Injunctions
Competition Law Trade Practices Cartel Conduct Price Fixing Market Sharing Accessories Liability Pecuniary Penalties Injunctions

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Parties

Australian Competition and Consumer Commission

Applicant

Visy Industries Holdings Pty Limited

First Respondent

Visy Industries Australia Pty Limited

Second Respondent

Visy Board Pty Limited

Third Respondent

Richard Pratt

Fourth Respondent

Harry Debney

Fifth Respondent

Rod Carroll

Sixth Respondent

Procedural Posture

Civil Penalty Proceeding / Judgment, Final Orders

Legal Issues

  1. 1 Did Visy and associated individuals and companies engage in cartel conduct contrary to s 45 of the Trade Practices Act 1974 (Cth)?
  2. 2 Were the individual respondents knowingly concerned in, or parties to, these contraventions?
  3. 3 Are proposed penalties appropriate having regard to the seriousness and nature of the contraventions?

Ratio Decidendi

Visy, through its companies and senior officers, engaged in price fixing, market sharing and related cartel conduct over nearly five years in relation to the supply of corrugated fibreboard packaging. These arrangements constituted 69 contraventions of s 45 TPA, with penalties to be imposed for 37 contraventions pursuant to s 76(3). The conduct was deliberate, covert, and extended over a substantial period involving senior management, justifying the substantial pecuniary penalties and other relief ordered.

Court Disposition

Declarations made of 69 contraventions by Visy, with pecuniary penalties for 37 distinct contraventions (per s 76(3)). Pecuniary penalties imposed on Debney and Carroll. Injunctive and compliance program orders. Costs ordered.

Orders

  • Order that Visy pay a pecuniary penalty of $36 million.
  • Order that Harry Debney pay a pecuniary penalty of $1,500,000.