Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd

This case involved the Australian Competition and Consumer Commission (ACCC) suing Universal Music Australia Pty Ltd and several individuals for alleged contraventions of the Competition and Consumer Act 2010 (Cth). The ACCC alleged that Universal and Warner Music Australia engaged in anti-competitive practices in the Australian record industry, specifically in relation to the closure of certain accounts. The individual respondents were alleged to have aided and abetted Warner in the conduct or been knowingly concerned in it. The court had to determine whether Universal and Warner contravened sections 46 and 47 of the Act and whether the individual respondents contravened section 79B of the Act.

The primary legal issues were whether the conduct of Universal and Warner constituted anti-competitive practices under the Act and whether the individual respondents were knowingly concerned in or participated in the conduct. The court needed to consider the admissibility and relevance of the extensive evidence presented, which included conduct evidence, market evidence, and economic evidence. The court also had to consider the failure of the individual respondents to give evidence and the implications of that failure under the rule in Jones v Dunkel.

The court found that the facts relating to the account closures showed involvement of Mr Smerdon and Mr Maksimovic, establishing their knowledge and participation in the Warner conduct. The court was satisfied that they contravened section 79B of the Act in respect of Warner's contraventions of sections 46 and 47 of the Act. The court concluded that Universal and Warner contravened sections 46 and 47 of the Act, and the individual respondents, other than Ms Cohen, contravened section 79B in respect of the conduct of Universal and Warner.

The matter was stood over to a date to be fixed with counsel to permit argument on the form of the orders to be made, including the quantum of pecuniary penalty and other consequential orders. The court also set a timetable for the filing of any additional evidence on the question of pecuniary penalty.