ACCC v Bluescope Steel Ltd [2023]
Federal Court of Australia
(2023) FCA 1029 (29 August 2023)
Justice O’Bryan
Note: Appeal
Please note that Bluescope appealed this decision (on 22 September 2023)
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).
In 2022 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.
This judgment related to penalties.
Justice O’Bryan imposed the highest cartel penalty to date: $57.5 million on BlueScope and $575,000 on Jason Ellis.
Catchwords
COMPETITION – application for the imposition of pecuniary penalties and other relief under Pt VI of the Competition and Consumer Act 2010 (Cth) for conduct constituting an attempt to induce an understanding containing cartel provisions – relevant penalty considerations in the case of an attempt to induce a contravention – relevance of the potential for the attempt to have caused loss and damage – relevance of the potential for the corporate respondent to have obtained financial gain – maximum penalty for corporate respondent – whether corporate respondent obtained a benefit from the conduct that was subject to penalty – whether the Court is empowered by s 86E or s 80 to disqualify an individual respondent from managing corporations in the case of an attempt to induce a contravention – whether the Court is empowered to make a personal payment or non-indemnification order under s 76
STATUTORY INTERPRETATION – meaning of the phrase “the benefits that have been obtained” in s 76(1A) of the Competition and Consumer Act 2010 (Cth) – proper construction of the limitation period in s 77(2) and its application where part of the conduct that was subject to penalty occurred outside the limitation period
Legislation cited
Acts Interpretation Act 1901 (Cth), s 15AA
Australian Securities and Investments Commission Act 1989 (Cth), ss 12DA(1), 12GD, 12GM
Competition and Consumer Act 2010 (Cth), Pt IV, ss 44ZZRB, 44ZZRJ, Pt V, Pt VI, ss 75B, 76, 77, 77A, 80, 81, 82, 86C, 86D, 87
Corporations Act 2001 (Cth), ss 182, 183, 199A, 199B, 206C
Fair Work Act 2009 (Cth), s 546
Federal Court of Australia Act 1976 (Cth), s 21
Statute Law (Miscellaneous Provisions) Act (No 1) 1983 (Cth)
Trade Practices Legislation Amendment Act (No 1) 2006 (Cth)
Media and commentary