ACCC v Bluescope Steel Ltd
Federal Court of Australia
(2022) FCA 1475 (9 December 2022)
Justice O’Bryan
Summary
ACCC alleged cartel conduct in the form of attempting to induce distributors and manufacturers to enter into agreements containing a price fixing provision (2013-2014).
Justice O’Bryan found the majority of ACCC’s allegations proved; in particular, that BlueScope and one of its former senior executives, Jason Ellis, attempted to induce competitors to enter price fixing agreements.
Remedies
Decision on remedies pending. Hearing scheduled for 3 April 2023
Trial
A lengthy hearing took place between Sept-Nov 2021
Catchwords
COMPETITION – alleged attempts to induce certain suppliers of flat steel products to contravene the Competition and Consumer Act 2010 (Cth) (Act) by arriving at an understanding containing cartel provisions – cartel provisions being provisions to control or maintain the price of flat steel products supplied in Australia – whether putative counterparties to the understandings were or were likely to be in competition with each other at the relevant time – market definition – consideration of product and functional dimensions of the markets for the supply of flat steel products – whether overseas steel mills compete with domestic producer – whether respondents intended to induce understandings containing cartel provisions – whether an attempt to induce an understanding requires one party to seek a commitment from the other – means by which an understanding may be reached
STATUTORY INTERPRETATION – meaning of “attempted to induce” a contravention in s 76(1)(d) of the Act – meaning of “understanding” in Pt IV of the Act – meaning of “fixing, controlling or maintaining” prices in Pt IV of the Act – whether s 84(1) of the Act (attribution of state of mind) is applicable to an attempt to induce a contravention within s 76(1)(d) of the Act
Legislation cited
Competition and Consumer Act 2010 (Cth) ss 2, 4(1), 4F, 44ZZRB, 44ZZRC, 44ZZRD, 44ZZRJ, 44ZZRK, 48, 76, 84, 86E, 96, 97
Criminal Code Act 1995 (Cth) Sch 1 (Commonwealth Criminal Code) s 11.1
Evidence Act 1995 (Cth) ss 81, 135, 136, 140
Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 (Cth)
Trade Practices Revision Act 1986 (Cth)
Explanatory Memorandum, Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 (Cth)
Explanatory Memorandum, Trade Practices Revision Bill 1986 (Cth)
Media and commentary