Competition, Trade Practices & Regulatory
FocusPapers in the area of Competition, Trade Practices and Regulatory
ACCC Investigations - When can the ACCC be Required to Disclose Documents?
17 October 2008
Author: Graham Maher, Partner
Practice area: Competition, Trade Practices & Regulatory
There is significant awareness of the broad powers of the Australian Competition and Consumer Commission ("ACCC") to compulsorily acquire documents and information as part of its investigative powers under the Trade Practices Act (Cth) ("TPA"). There is perhaps less awareness of the ACCC's obligations to provide documents to those against whom proceedings are commenced which would assist in the defence of their position.
Lie to the ACCC at your peril - the ACCC commences criminal prosecution for breach of section 155 of the Trade Practices Act
20 June 2008
Author: Kathryn Edghill, Partner and Graham Maher, Partner
Practice area: Competition, Trade Practices & Regulatory
In a high profile case demonstrating the seriousness with which Australia's competition regulator, the Australian Competition and Consumer Commission (ACCC) will pursue those involved in breaches of the Trade Practices Act (TPA), the ACCC has commenced criminal proceedings against the chairman of the Visy Group of companies, Mr Richard Pratt, alleging that he gave false evidence to it during its investigation of price fixing between Visy and a competitor, Amcor, in the corrugated cardboard carton industry in Australia.
Exclusive Dealing Under the Trade Practices Act - eBay's Application for Immunity Rejected by the ACCC
18 June 2008
Author: Kathryn Edghill, Partner and Graham Maher, Partner
Practice area: Competition, Trade Practices & Regulatory
In a timely reminder that the grant of immunity for exclusive dealing conduct which would otherwise be a breach of the Trade Practices Act is not necessarily a foregone conclusion, the Australian Competition and Consumer Commission (ACCC) recently issued a draft determination rejecting eBay's application for immunity in respect of its proposed requirement that users of its on-line marketing facility make and receive payments through accounts held with its related company, PayPal.
The ACCC Gains Significant New Investigative Powers Under Section 155 of the Trade Practices Act
26 May 2008
Author: Kathryn Edghill, Partner and Graham Maher, Partner
Practice area: Competition, Trade Practices & Regulatory
The Australian government has announced the introduction of a significant extension to the powers of the Australian antitrust regulator, the Australian Competition and Consumer Commission (ACCC) to investigate suspected breaches of the Trade Practices Act (TPA). These powers enhance the ACCC's ability to obtain documents and information from companies (and individuals) doing business in Australia, to support allegations of breaches of the TPA, outside the regular court processes such as discovery, even though proceedings have been commenced.
Civil Proceedings for Cartel Conduct: No Public Interest in Australia in preventing disclosure of whistleblower's statement
26 February 2008
Author: Graham Maher
Practice area: Competition, Trade Practices & Regulatory
The Australian Federal Court recently rejected an argument by the Australian Competition and Consumer Commission (ACCC) that draft witness statements made by officers of an immunity applicant and intended for use, although not used, in penalty proceedings, should not be disclosed in subsequent civil proceedings on the basis of public interest immunity.
Contesting the Jurisdiction of Australian Courts by Foreign Companies and Individuals - No Exposure to Compulsory Processes of the Court
19 February 2008
Author: Kathryn Edghill, Partner and Graham Maher, Partner
Practice area: Competition, Trade Practices & Regulatory
In a recent decision (Armacel Pty Limited v Smurfit Stone Container Corporation [2007] FCA 1928) the Federal Court of Australia held that a foreign corporation which was contesting the Court's jurisdiction in proceedings commenced against it could not be compelled to comply with compulsory processes of the Court such as Notices to Produce documents. The case has ramifications not only for foreign respondents who are served with Australian court proceedings overseas but also for persons wishing to proceed in Australia against foreign respondents.
Cartel Conduct to be a Criminal Offence in Australia
24 January 2008
Author: Graham Maher, Partner and Kathryn Edghill, Partner
Practice area: Competition, Trade Practices & Regulatory
On 11 January 2008 the Australian Government released for public comment a draft Bill (Bill) in which it proposes to amend the Trade Practices Act 1974 (Act) by introducing two criminal offences relating to cartel conduct. One aspect of the proposed amendments includes a broadening of the extraterritorial application of the Act which will make the accessorial liability provisions applicable to conduct engaged in wholly outside Australia, but which has an effect in an Australian market.
Australian Competition Regulator Comments on New Predatory Pricing Prohibition: Trade Practices Act 1974 (s 461AA)
17 January 2008
Author: Graham Maher, Partner and Kathryn Edghill, Partner
Practice areas: Corporate, Mergers & Acquisitions and Competition, Trade Practices & Regulatory
With effect from 25 September 2007 the Australian Trade Practices Act was amended, among other matters, to include, in the context of the prohibition on misuse of market power, a specific provision prohibiting predatory pricing. The expressed purpose of the new provision is to "specifically target(ing) anticompetitive below-cost pricing by corporations with a substantial market share". Recently, in the context of its Report into the price of unleaded petrol in Australia the Australian Competition and Consumer Commission discussed the new provision and proffered some preliminary guidance as to its likely interpretation.
Australia adopts new predatory pricing prohibition
11 October 2007
Author: Kathryn Edghill, Partner and Graham Maher, Partner
Practice area: Competition, Trade Practices & Regulatory
Recent amendments to the Australian Trade Practices Act have created a separate offence of predatory pricing which is not dependent upon a corporation having a dominant position in a market or substantial market power.
Doing business with government in Australia - no immunity from breach of the Trade Practices Act
11 October 2007
Author: Kathryn Edghill, Partner and Graham Maher, Partner
Practice area: Competition, Trade Practices & Regulatory
On 29 August 2007, the Australian High Court handed down its decision in ACCC v Baxter Healthcare Pty Limited [2007] HCA 38. The decision is significant for any company dealing with Australian Federal, State and Territory government bodies, such as purchasing authorities. The decision sweeps away any derivative crown immunity which attached to companies doing business with government bodies and opens the door for such companies to be liable for breaches of Australia's antitrust law, the Trade Practices Act 1974 (Cth) (TPA).
Resale price maintenance - no rule of reason in Australia
22 July 2007
Author: Kathryn Edghill, Partner and Graham Maher, Partner
Practice area: Competition, Trade Practices & Regulatory
The US Supreme Court's recent decision in Leegin Creative Leather Products, Inc. v PSKS, Inc., No. 06-480 (June 28, 2007) (Leegin), has overruled nearly 100 years of established law under the Sherman Act by holding that resale price maintenance should be judged by the rule of reason and no longer be unlawful per se.
Australian Court Paves Way for Evidence to be Taken in Australia in US Proceedings Involving Breach of the Sherman Act
22 May 2007
Author: Kathryn Edghill, Partner
Practice area: Competition, Trade Practices & Regulatory
In a recent decision (Sykes v Richardson [2007] NSWSC 418) the Supreme Court of New South Wales held that a witness could be compelled to give evidence in Australia for use in civil proceedings in the United States involving alleged breaches of the Sherman Act.
Trade Practices (Horticulture Code of Conduct) Regulations 2006
10 May 2007
Author: Jamie Nettleton, Partner
Practice area: Competition, Trade Practices & Regulatory
The Horticulture Code of Conduct ('the Code') commences on 14 May 2007. The Code is mandatory and applies to all transactions between growers and wholesalers of fresh fruit, vegetables, nuts, herbs and other edible plants. No business can be conducted between growers and wholesalers unless a horticultural produce agreement prepared in accordance with the Code is signed.