Australian Competition and Consumer Commission v Visy Paper Pty Ltd

In the case of Australian Competition and Consumer Commission v Visy Paper Pty Ltd, the Australian Competition and Consumer Commission (ACCC) brought proceedings against Visy Paper Pty Ltd, alleging that the company contravened the Trade Practices Act 1974 (Cth) (TP Act) through exclusionary provisions in their contracts. The ACCC further alleged that Visy's executives, Mr Guthridge and Mr Richards, attempted to induce a third party, NPP, to contravene the TP Act. The matter was heard in the Federal Court, where the primary focus was on the interpretation and application of section 45(6) of the TP Act.

The court was required to determine the scope and application of section 45(6) of the TP Act, which exempts certain conduct from the prohibitions in section 45(2). Specifically, the court needed to decide whether Visy's contracts with NPP, containing non-competition clauses, constituted a contravention of section 45(2)(a)(i) of the TP Act, and whether Mr Guthridge and Mr Richards attempted to induce NPP to contravene the Act. The court also had to consider the implications of Visy not calling their in-house lawyer, Mr Kaye, as a witness.

The court found that section 45(6) of the TP Act applied to the circumstances of the case, meaning that the making of a contract between Visy and NPP containing a non-competition clause would not have constituted a contravention of section 45(2)(a)(i) of the TP Act. Consequently, the ACCC failed to prove that Visy attempted to contravene or induce NPP to contravene section 45(2)(a)(i) of the TP Act. The court also found that Mr Guthridge and Mr Richards had endeavoured to persuade NPP to enter into agreements with non-competition clauses, but this did not amount to an attempt to induce NPP to contravene section 45(2)(a)(i) of the TP Act. The application was dismissed, and the ACCC was ordered to pay Visy's costs.

The court's reasoning focused on the interpretation of section 45(6) of the TP Act, which was intended to prevent overlap between sections 45 and 47 of the Act and to subject exclusive dealing to the regime created by section 47. The court found that the making of a contract containing a non-competition clause did not contravene section 45(2)(a)(i) due to the operation of section 45(6). As a result, the ACCC's claims were dismissed, and Visy was exonerated from the allegations.