Australian Competition and Consumer Commission v Olex Australia Pty Ltd [2017] FCA 222

Australian Competition and Consumer Commission v Olex Australia Pty Ltd [2017] FCA 222

The Court found that the evidence did not establish that the respondents had entered into an arrangement or understanding of the kind alleged by the ACCC. The key factual findings were that the proposals for charging cutting fees and minimum order values were unilateral business decisions, openly communicated and discussed but not the subject of mutual commitment, and that there was no evidence of a support provision or any underlying commitment from the wholesalers. No cartel provisions or exclusionary arrangements were made; the circumstantial case did not meet the requisite standard of proof. The ACCC's bid rigging claim failed for similar absence of convincing evidence of any relevant...

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent: Olex Australia Pty Ltd; Second Respondent: Tony Stewart Dunstan; Third Respondent: Prysmian Power Cables & Systems Australia Pty Ltd; Fourth Respondent: John Llyr Lewis Roberts; Fifth Respondent: Rexel Electrical Supplies Pty Ltd; Sixth Respondent: Australian Regional Wholesalers Pty Ltd; Seventh Respondent: Guy Picken; Eighth Respondent: Lawrence & Hanson Group Pty Ltd; Ninth Respondent: Robin Norris; Tenth Respondent: Brian Alexander Webb; Eleventh Respondent: Laurence Thomas Murphy; Twelfth Respondent: Electrical Wholesalers Association of Australia Ltd
Jurisdiction
Australia
Judgment Date
09 March 2017
Procedural Posture
Civil / Trial Judgment
Outcome
Application dismissed
Legal Topics
Cartel Conduct, Market Sharing, Price Fixing, Bid Rigging, Exclusionary Provisions, Resale Price Maintenance, Exclusive Dealing
Competition Law Cartel Conduct Market Sharing Price Fixing Bid Rigging Exclusionary Provisions Resale Price Maintenance Exclusive Dealing

Case Brief

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Parties

Australian Competition and Consumer Commission

Applicant

Olex Australia Pty Ltd

First Respondent

Tony Stewart Dunstan

Second Respondent

Prysmian Power Cables & Systems Australia Pty Ltd

Third Respondent

John Llyr Lewis Roberts

Fourth Respondent

Rexel Electrical Supplies Pty Ltd

Fifth Respondent

Australian Regional Wholesalers Pty Ltd

Sixth Respondent

Guy Picken

Seventh Respondent

Lawrence & Hanson Group Pty Ltd

Eighth Respondent

Robin Norris

Ninth Respondent

Brian Alexander Webb

Tenth Respondent

Laurence Thomas Murphy

Eleventh Respondent

Electrical Wholesalers Association of Australia Ltd

Twelfth Respondent

Procedural Posture

Civil / Trial Judgment

Legal Issues

  1. 1 Whether there was an arrangement or understanding constituting cartel conduct under the Competition and Consumer Act 2010 (Cth)
  2. 2 Whether the respondents reached necessary commitment for an arrangement or understanding involving price fixing, market allocation, or bid rigging
  3. 3 Whether any exclusionary provision for the purposes of s 4D of the Act existed

Ratio Decidendi

The Court found that the evidence did not establish that the respondents had entered into an arrangement or understanding of the kind alleged by the ACCC. The key factual findings were that the proposals for charging cutting fees and minimum order values were unilateral business decisions, openly communicated and discussed but not the subject of mutual commitment, and that there was no evidence of a support provision or any underlying commitment from the wholesalers. No cartel provisions or exclusionary arrangements were made; the circumstantial case did not meet the requisite standard of proof. The ACCC's bid rigging claim failed for similar absence of convincing evidence of any relevant...

Court Disposition

Application dismissed

Orders

  • The applicant's originating application be dismissed.
  • The applicant pay the respondents' costs of and incidental to this proceeding including all reserved costs.