Australian Competition and Consumer Commission v FChem (Aust) Limited

The Australian Competition and Consumer Commission (ACCC) brought proceedings against FChem (Aust) Limited, Osmose Australia Pty Ltd, and Mr Greenacre, in their capacities as officers of FChem (Aust) Limited, for contraventions of the Competition and Consumer Act 2010 (Cth). The ACCC alleged that the respondents had engaged in anti-competitive conduct, including price fixing, in relation to the supply of treated timber preservatives in Australia. The Federal Court of Australia was tasked with determining whether the respondents had contravened the Act and, if so, what orders should be made against them.

The primary legal issues before the court were whether the respondents had engaged in conduct that contravened the Act, specifically sections 45 and 46, which prohibit anti-competitive agreements and price fixing, respectively. Additionally, the court had to consider the appropriate remedies, including pecuniary penalties and injunctions, to address the contraventions and deter future misconduct.

The court found that the respondents had contravened the Act by engaging in anti-competitive conduct. The evidence demonstrated that FChem (Aust) Limited, Osmose Australia Pty Ltd, and Mr Greenacre had entered into agreements and engaged in conduct that had the purpose, or was likely to have the effect, of fixing, controlling, or maintaining the prices of treated timber preservatives in Australia. The court held that these actions were anti-competitive and contravened the Act. Given the seriousness of the conduct and the need to deter future misconduct, the court ordered pecuniary penalties against FChem (Aust) Limited and Osmose Australia Pty Ltd, and a lesser penalty against Mr Greenacre. The court also granted injunctions against all respondents to prevent them from engaging in similar conduct for a period of three years. The injunctions were intended to reinforce the penalties and serve as a reminder of the respondents' prior misconduct.

The court further ordered that FChem (Aust) Limited pay a pecuniary penalty of $1.25 million, Osmose Australia Pty Ltd pay a penalty of $1.25 million, and Mr Greenacre pay a penalty of $120,000. Additionally, FChem (Aust) Limited and Osmose Australia Pty Ltd were restrained from entering into anti-competitive agreements for three years, and Mr Greenacre was similarly restrained from being involved in such agreements. The court also ordered the respondents to pay the ACCC’s costs of the proceedings.