Visy Paper Pty Limited & Ors v Australian Competition and Consumer Commission

Visy Paper Pty Limited and its related entities (Visy) appealed to the High Court of Australia against a decision of the Full Federal Court concerning alleged contraventions of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)). The Australian Competition and Consumer Commission (ACCC) had alleged that Visy engaged in a price-fixing cartel with Amcor Australia Limited and Amcor Limited (Amcor) in relation to the supply of cardboard packaging. The ACCC's case was that Visy and Amcor had entered into an understanding or agreement to fix the prices of cardboard packaging sold to a number of major customers.

The High Court was required to determine whether the Full Federal Court had erred in finding that Visy had contravened section 45(2)(a)(ii) and section 45(2)(b)(ii) of the *Trade Practices Act 1974* (Cth). These provisions prohibit corporations from making contracts or arrangements or arriving at understandings, the purpose or effect of which is to fix, control, or maintain the price of goods or services supplied by them. The central legal issue was whether the conduct of Visy and Amcor amounted to a contravention of these provisions, specifically concerning the alleged price-fixing arrangements in the cardboard packaging market.

The High Court, comprising Gleeson CJ and Callinan J, considered the evidence presented and the findings of the lower courts. The Court analysed the nature of the communications and agreements between Visy and Amcor, focusing on whether they constituted an "understanding" or "arrangement" within the meaning of section 45. The reasoning involved an examination of the commercial context and the intent behind the parties' actions. The Court ultimately found that the Full Federal Court had correctly identified and applied the relevant legal principles in concluding that Visy had contravened the Act.

The High Court dismissed the appeal, upholding the decision of the Full Federal Court. Consequently, Visy remained liable for the contraventions of the *Trade Practices Act 1974* (Cth) as determined by the lower court.