CDPP v Wallenius Wilhelmsen Ocean AS

Federal Court of Australia
[2021] FCA 52 (4 February 2021)
Justice Wigney

Catchwords

CRIMINAL LAW – sentencing – cartel conduct – giving effect to a cartel provision – where offender is a corporation – where offender pleaded guilty – rolled up offence – appropriate pecuniary penalty – where offender provided bulk shipping services of “roll on, roll off” cargo to Australia

Legislation

Competition and Consumer Act 2010 (Cth) 
Sections 4F, 5, 44ZZRB, 44ZZRD, 44ZZRD(1), 44ZZRD(3)(b)(i), 44ZZRD(4)(a), 44ZZRD(4)(b), 44ZZRD(4)(b)(c), 44ZZRG, 44ZZRG(1), 44ZZRG(1)(a), 44ZZRG(1)(b), 44ZZRG(2), 44ZZRG(3), 44ZZRG(3)(b), 45AG, 79A(3)

Crimes Act 1914 (Cth) 
Sections 15A(1), 16A, 16A(1), 16A(2), 16A(2)(a), 16A(2)(b), 16A(2)(c), 16A(2)(d), 16A(2)(e), 16A(2)(f), 16A(2)(g), 16A(2)(h), 16A(2)(j), 16A(2)(ja), 16A(2)(k), 16A(2)(m), 16A(2)(n), 16AB, 16AC, 16BA, 16BA(1), 16BA(2), 16C, 16C(1), 16C(2)

Criminal Code Act 1995 (Cth) 
Sections 5.3, 5.6(1)

Evidence Act 1995 (Cth) 
Section 191

Federal Court of Australia Act 1976 (Cth) 
Section 23AB(1)(b)

Summary

On 18 June 2020 Wilhelmsen Ocean AS (WWO) pleaded guilty to criminal cartel conduct. On 4 February it was convicted and ordered by the Federal Court to pay a fine of $24 million. This was the third criminal prosecution arising from the global shipping cartel.

Justice Wigney labelled the conduct ‘extremely serious’. In his judgment summary he said:

“Third, as is often the case with cartel conduct, the facts revealed that WWO’s conduct was covert, deliberate, systematic and involved planning and deliberation. It involved an anti-competitive course of conduct that spanned a period of just over one year.

Fourth, the offending conduct was engaged in by mostly senior managers and sanctioned by some senior executives at WWO. Those senior officers knew or must have known that the conduct was anti-competitive and breached antitrust or competition laws. If they did not specifically know that it breached Australia’s competition laws, they should have. In any event, they must have known that there was a real risk that it did.

…

Having regard to all of the relevant features and factors, and giving them appropriate weight, the Court has determined that the appropriate sentence to impose on WWO in all the circumstances is a fine of $24 million. That fine incorporates a global discount of 20% for WWO’s early plea of guilty, meaning that, but for that discount, WWO would have been fined $30 million.

It remains to reiterate and emphasise that cartel conduct of the sort engaged in by WWO warrants stern denunciation and condign punishment. It is inimical to and destructive of the competition that underpins Australia’s free market economy and is ultimately detrimental to Australian businesses and consumers. The penalty imposed on WWO is intended to and should send a powerful message to multinational corporations that conduct business in Australia: that anti-competitive conduct will not be tolerated in Australia and that they will be dealt with harshly by this Court if found to have engaged in such conduct.”