Australian Competition and Consumer Commission v Visa Inc

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FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Visa Inc

[2015] FCA 1020  

Citation: Australian Competition and Consumer Commission v Visa Inc [2015] FCA 1020
Parties: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION  v VISA INC, VISA WORLDWIDE PTE LTD, VISA U.S.A. INC, VISA AP (AUSTRALIA) PTY LTD (ACN 134 885 564) and VISA INTERNATIONAL SERVICE ASSOCIATION
File number: NSD 164 of 2013
Judge: WIGNEY J
Date of judgment: 4 September 2015
Catchwords: COMPETITION – exclusive dealing contrary to s 47 of the Competition and Consumer Act 2010 (Cth) – whether the Court should grant declaratory relief in relation to contravention – pecuniary penalty – relevant principles in relation to the fixing of an appropriate pecuniary penalty pursuant to s 76 of the Competition and Consumer Act 2010 (Cth)
Legislation: Competition and Consumer Act 2010 (Cth), ss 46, 47, 76
Evidence Act 1995 (Cth), ss 81, 191
Federal Court of Australia Act1976 (Cth), s 21
Cases cited: Australian Competition and Consumer Commission v Apple Pty Limited [2012] FCA 646
Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2015] ATPR 42-494; [2015] FCA 330
Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union (2007) ATPR 42-140
Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301
Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378
Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640
Barbaro v The Queen (2014) 253 CLR 58
Director of Public Prosecutions (Cth) v Gregory (2011) 34 VR 1
Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 229 FCR 331
Forster v Jododex Australia Pty Limited (1972) 127 CLR 421
Hili v The Queen (2010) 242 CLR 520
Markarian v The Queen (2005) 228 CLR 357
Milne v The Queen (2012) 259 FLR 42; (2012) 219 A Crim R 237
Minister for Environment, Heritage and the Arts v PGP Developments Pty Ltd (2010) 183 FCR 10
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
R v Geddes (1936) 36 SR (NSW) 554
R v Williscroft [1975] VR 292
Rural Press Limited v Australian Competition and Consumer Commission (2003) 216 CLR 53
Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited [1921] 2 AC 438
Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249
Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89
TPG Internet Pty Ltd v Australian Competition and Consumer Commission (2012) 210 FCR 277
Trade Practices Commission v CSR Ltd (1991) ATPR 41-076
Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091
Wong v The Queen (2001) 207 CLR 584
Date of hearing: 31 August 2015 and 3-4 September 2015
Place:
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Details
Case
[2015] FCA 1020
Decision Date

CaseChat Overview and Summary

The Australian Competition and Consumer Commission initiated proceedings against Visa Inc, alleging that the respondent had contravened section 47 of the Competition and Consumer Act 2010 by engaging in exclusive dealing practices. The Federal Court of Australia was tasked with determining whether the ACCC was entitled to declaratory relief and a pecuniary penalty under the Act. The court was also required to consider the principles relevant to determining an appropriate pecuniary penalty pursuant to section 76 of the Competition and Consumer Act 2010.

The court found that Visa Inc had engaged in exclusive dealing practices that were contrary to section 47 of the Act. The court considered the principles for determining an appropriate pecuniary penalty, including the gravity of the contravention, the conduct of the contravener, and the deterrence and public interest considerations. The court held that the penalty should be significant enough to deter future contraventions, and to ensure that the contravention did not confer any significant benefit on the contravener. The court found that the appropriate penalty in this case was AU$18 million, and ordered the respondent to pay this amount within 28 days of the date of the order.

The court also ordered that the respondent pay the ACCC’s costs of and incidental to the proceeding, agreed in the sum of AU$2 million. The application for declaratory relief was dismissed, as the court found that such relief was not necessary in the circumstances of the case. The orders of the court were made pursuant to Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

2. The second respondent pay to the Commonwealth of Australia a pecuniary penalty in the sum of AU$18 million within 28 days of the date of this order in respect of the declared contravention in paragraph 1.

3. The second respondent pay the applicant's costs of and incidental to the proceeding, agreed in the sum of AU$2 million.

4. The application otherwise be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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