Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 4) [2012] FCA 1323

Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 4) [2012] FCA 1323

The Federal Court has jurisdiction. The proceeding—alleging cartel conduct in contravention of the Trade Practices Act and Competition Codes—is of a kind for which service may be allowed outside Australia. The applicant has established a prima facie case, including that Prysmian and Nexans were carrying on business in Australia at the relevant time and were involved in alleged cartel arrangements and the Snowy Hydro Agreement. Hearsay evidence adduced with its source was admissible under s 75 of the Evidence Act and not subject to exclusion under s 135. The orders for service should not be set aside.

Jurisdiction
Australia
Judgment Date
26 November 2012
Procedural Posture
Civil Competition Law / Application to Set Aside Service of Originating Process; Interlocutory Decision
Outcome
Applications to set aside service are dismissed; costs awarded to applicant.
Legal Topics
['service Outside Jurisdiction' 'cartel Conduct' 'prima Facie Case' 'jurisdiction' 'application of Trade Practices Act' 'application of Competition Codes' 'hearsay Evidence' 'discretion to Set Aside Service']
['competition Law' 'practice and Procedure' 'evidence Law'] ['service Outside Jurisdiction' 'cartel Conduct' 'prima Facie Case' 'jurisdiction' 'application of Trade Practices Act' 'application of Competition Codes' 'hearsay Evidence' 'discretion to Set Aside Service']

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Procedural Posture

Civil Competition Law / Application to Set Aside Service of Originating Process; Interlocutory Decision

Legal Issues

  1. 1 ['Whether the Federal Court has jurisdiction' 'Whether the proceeding is of a kind permitting service out under O 8 r 2 of the Federal Court Rules 1979' 'Whether applicant has a prima facie case for the relief claimed' 'Whether hearsay evidence should be admitted under s 75 of the Evidence Act 1995 (Cth)' 'Whether evidence should be excluded under s 135 of the Evidence Act 1995 (Cth)' 'Whether Prysmian or Nexans were carrying on business in Australia' 'Whether the making/giving effect to cartel and Snowy Hydro Agreements can be established on a prima facie basis' 'Whether the Court should decline to exercise jurisdiction']

Ratio Decidendi

The Federal Court has jurisdiction. The proceeding—alleging cartel conduct in contravention of the Trade Practices Act and Competition Codes—is of a kind for which service may be allowed outside Australia. The applicant has established a prima facie case, including that Prysmian and Nexans were carrying on business in Australia at the relevant time and were involved in alleged cartel arrangements and the Snowy Hydro Agreement. Hearsay evidence adduced with its source was admissible under s 75 of the Evidence Act and not subject to exclusion under s 135. The orders for service should not be set aside.

Court Disposition

Applications to set aside service are dismissed; costs awarded to applicant.

Orders

  • ['The applicant have leave to reopen its case to tender the affidavit of Ms Susan Jacquier affirmed 13 March 2012.' 'The application by the first respondent (Prysmian) to discharge grant of leave to serve or set aside service of originating process is dismissed.' 'The application by the second respondent (Nexans)...