Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [2019] FCAFC 83

Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [2019] FCAFC 83

The Commission did not establish error in the trial judge's refusal to infer that Cussons reached the alleged Withhold Supply Arrangement with Colgate and Unilever. The trial judge did not require proof of a contract, was entitled to consider the absence of direct communications and commitments as evidentiary matters, and was entitled to find that the parallel transition was explained by retailer incentives, the range review process and Woolworths' and Coles' role rather than by collusion. Because the existence of the arrangement or understanding was not proved, the alleged contraventions and giving-effect grounds failed.

Jurisdiction
Australia
Judgment Date
24 May 2019
Procedural Posture
Competition Appeal Concerning Alleged Restrictive Trade Practices and Cartel Conduct Under the Trade Practices Act 1974 (cth) / Appeal From Australian Competition and Consumer Commission V Colgate Palmolive Pty Ltd (no 4) [2017] FCA 1590
Outcome
Appeal dismissed with costs.
Legal Topics
['restrictive Trade Practices' 'cartel Conduct' 'arrangements or Understandings' 'exclusionary Provisions' 'substantial Lessening of Competition' 'conscious Parallelism' 'appellate Review of Factual Inferences']
['competition Law' 'trade Practices' 'appellate Procedure'] ['restrictive Trade Practices' 'cartel Conduct' 'arrangements or Understandings' 'exclusionary Provisions' 'substantial Lessening of Competition' 'conscious Parallelism' 'appellate Review of Factual Inferences']

Case Brief

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Procedural Posture

Competition Appeal Concerning Alleged Restrictive Trade Practices and Cartel Conduct Under the Trade Practices Act 1974 (cth) / Appeal From Australian Competition and Consumer Commission V Colgate Palmolive Pty Ltd (no 4) [2017] FCA 1590

Legal Issues

  1. 1 ['Whether Cussons contravened ss 45(2) or 44ZZRK of the Trade Practices Act 1974 (Cth) by entering into or giving effect to the alleged Withhold Supply Arrangement with Colgate and Unilever.' 'Whether the trial judge, despite stating the correct principles, erroneously required proof of a contract rather than an arrangement or understanding.' "Whether the trial judge erred in treating the Suppliers' parallel transition to ultra-concentrated laundry detergent as explicable without an arrangement or understanding." 'Whether the trial judge erred in finding that Woolworths and Coles drove the timing and scope of the transition.' 'Whether the factual findings and inferences challenged by the Commission disclosed appellate error.']

Ratio Decidendi

The Commission did not establish error in the trial judge's refusal to infer that Cussons reached the alleged Withhold Supply Arrangement with Colgate and Unilever. The trial judge did not require proof of a contract, was entitled to consider the absence of direct communications and commitments as evidentiary matters, and was entitled to find that the parallel transition was explained by retailer incentives, the range review process and Woolworths' and Coles' role rather than by collusion. Because the existence of the arrangement or understanding was not proved, the alleged contraventions and giving-effect grounds failed.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The Appellant pay the Second Respondent's costs as assessed or agreed."]