Visy Paper Pty Ltd v Australian Competition and Consumer Commission

Visy Paper Pty Ltd, along with its executives Mr William Guthridge and Mr Stephen Richards, appealed against the decision of the Full Court which had remitted the matter back to the primary Judge to determine pecuniary penalties. The Australian Competition and Consumer Commission (ACCC) had commenced proceedings against Visy, alleging that it attempted to contravene section 45(2)(a)(i) of the Trade Practices Act 1974 (Cth) and also attempted to induce a third party, Northern Pacific Paper Pty Ltd, to contravene that section. The primary Judge dismissed the proceedings against Visy and the appellants. The ACCC appealed to the Full Court which allowed the appeal and ordered that the matter be remitted to the primary Judge for the determination of pecuniary penalties. The primary Judge then imposed penalties on Visy and the appellants. The appellants challenged the penalty judgment. The main issues for the court to decide were whether the primary Judge misapplied the reasoning of the Full Court in Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission and whether the primary Judge made errors in his findings as to the anti-competitive purpose and effect of the appellants’ conduct and the loss or damage that resulted from, or was likely to result from, the appellants’ conduct. The court found that the primary Judge did not misapply the reasoning of the Full Court and that his findings were supported by the evidence. The court also found that the penalties imposed were appropriate. The appeal was dismissed with costs.