Australian Competition and Consumer Commission v BlueScope Steel Limited (No 6)

The Australian Competition and Consumer Commission (ACCC) brought proceedings against BlueScope Steel Limited and one of its executives, Jason Ellis, alleging that they attempted to induce competing suppliers of flat steel products in Australia to contravene the Competition and Consumer Act 2010 (Cth). Specifically, the ACCC alleged that BlueScope and Mr Ellis attempted to induce nine other companies to arrive at an understanding containing cartel provisions. This case concerned the imposition of pecuniary penalties and other relief under Part VI of the Competition and Consumer Act 2010 (Cth) for the conduct constituting an attempt to induce an understanding containing cartel provisions. The court was required to decide the relevant penalty considerations in the case of an attempt to induce a contravention, including the potential for the attempt to have caused loss and damage, the potential for the corporate respondent to have obtained financial gain, and the maximum penalty for the corporate respondent. The court also had to determine whether the corporate respondent obtained a benefit from the conduct that was subject to penalty and whether it had the power to disqualify an individual respondent from managing corporations in the case of an attempt to induce a contravention.

The Court determined that the maximum penalty for BlueScope was $10,000,000 for each contravention, and the maximum penalty for Mr Ellis was one-tenth of that amount. The Court considered the nature and seriousness of the contraventions, the potential harm caused by the contraventions, and the culpability of the respondents in determining the appropriate penalties. The Court found that BlueScope and Mr Ellis had attempted to induce the other companies to arrive at an understanding containing cartel provisions, and that the contraventions were serious and had the potential to cause significant harm to the market. The Court found that BlueScope had obtained a benefit from the conduct that was subject to penalty, and that Mr Ellis had played a significant role in the contraventions. The Court also found that it had the power to disqualify Mr Ellis from managing corporations in the case of an attempt to induce a contravention. The Court ordered BlueScope to pay pecuniary penalties totalling $57,500,000 and Mr Ellis to pay pecuniary penalties totalling $575,000. The Court also ordered that Mr Ellis was not to pursue any claim or accept any indemnity under any directors and officers insurance policy to which BlueScope or Mr Ellis was a party or an insured for payment or reimbursement of any part of the pecuniary penalty. The Court ordered BlueScope and Mr Ellis to pay the ACCC's costs of the proceeding.