s. 45. Alleged attempt by Visy Paper to induce another business (Northern Pacific Paper) to enter into a market sharing agreement for the collection of recyclable waste paper
18 November 1998: Proceedings were instituted in the Federal Court, Sydney, by the ACCC seeking orders against Visy Paper including declarations, injunctions, orders requiring the institution of trade practices compliance programs and costs. It sought penalites against Visy Paper and two senior employees.
20 November 2000: Justice Sackville dismissed the ACCC’s application with costs.
29 November 2000: The ACCC appealed and the appeal was heard 17–18 May 2001 before Justices Hill, North and Conti.
10 August 2001: The Full Federal Court upheld the ACCC’s appeal and Visy obtained special leave to appeal to the High Court.
3 December 2002: The respondent’s appeal was heard in the High Court.
8 October 2003: The High Court agreed with the Full Federal Court by a 5:1 majority that the conduct was illegal. In a joint judgment, Chief Justice Gleeson and Justices McHugh, Gummow and Hayne said that ‘section 45(6) provides to Visy Paper no answer to the case made against it by the ACCC’.
The case represents the first time the scope of s. 45(6) has been comprehensively considered by the High Court. The court’s construction of s. 45(6) resulted in Visy’s conduct being strictly prohibited by s. 45.
The matter has been remitted to the Federal Court, Sydney, on 6 October 2004 to consider the issue of penalty.
6 October 2004: Judgment was reserved following a penalty hearing.
18 November 2004: Penalties of $500 000 were imposed on Visy Paper and penalties of $25 000 were imposed on two senior executives of the company.
The Federal Court, Sydney, also ordered declarations and injunctions restraining Visy and the executives from engaging in similar conduct in future and ordered a trade practices compliance program.
9 December 2004: Appeal against penalty filed by respondent.
13 April 2005: Settlement and finlisation of appeal books. Penalty appeal set down for 2 May 2005.
