The Australian Competition and Consumer Commission is disappointed by today's Federal Court decision on allegations of price fixing in the Geelong petrol market in 1999-2000.
"This case was unusual in that it covered many allegations over a long time period," ACCC Chairman, Mr Graeme Samuel, said.
The ACCC originally instituted proceedings against 18 respondents alleging that they fixed the retail price of petrol in the Geelong area, in contravention of the Trade Practices Act 1974. A number of respondents made admissions prior to the trial and some did not contest the allegations.
"There was no dispute by many of the respondents in the Geelong proceedings that they communicated about petrol prices. What was disputed in court was whether those communications amounted to an 'arrangement or understanding' being reached between the parties as to how they would price their petrol.
"The decision highlights the difficulty of witnesses' exact recall to events of some years previously," Mr Samuel, said. "Witnesses were required to give exact rendition of events, conversations and their effect on prices.
"The ACCC recognises the difficulties proving such cases and also the challenges faced when presenting circumstantial evidence based on large data sets. This case turned on the Federal Court's interpretation of facts and evidence as presented.
"While disappointed with the outcome, today's judgment will not deter the ACCC from investigating allegations of price collusion in the petrol and related markets.
"The ACCC must take cases which it believes are in the public interest and which have a reasonable basis for success. The case followed the ACCC's successful prosecution of similar price fixing allegations in the Ballarat region which resulted in penalties of more than $20 million.
"In the Geelong case, the court has not found in the ACCC's favour."
In November of 2003 the Australian Competition and Consumer Commission instituted court proceedings against eight companies and 10 individuals, alleging that they fixed retail petrol prices in the Geelong area, in contravention of the Trade Practices Act 1974.
The ACCC instituted proceedings against the following respondents:
Leahy Petroleum Pty Ltd, Mr Ian Carmichael and Mr Michael Warner
Apco Service Stations Pty Ltd and Mr Peter Anderson
Pegasus Retail Pty Ltd, Mr Bruno Gallucci and Mr Andrew Pitman
United Geelong Pty Ltd and Mr Einokalevi Heikkila
Brumar (Vic) Pty Ltd and Mr Garry Dalton
United Retail Pty Ltd and Mr Colin Williamson
Liberty Oil Pty Ltd (replaced by Liberty Petroleum Pty Ltd on 19 April 2004) and Mr Alan Shuvaly, and
Andrianopoulos Motors Pty Ltd and Mr Christos Andrianopoulos.
The respondents were involved in retailing or distributing petrol in the Geelong area under the BP, APCO, Mobil, Shell and Liberty brands.
The ACCC alleged that they were part of a long-standing price-fixing arrangement during the 1990s until December 2000. The ACCC alleged the respondents entered into arrangements or understandings to increase retail petrol prices by telephoning one another in advance and communicating the size and approximate time of a price rise. Further calls were made between the companies if any site did not raise its prices at the time discussed in an effort to make that site increase to the same price. The ACCC sought penalties for more than 100 occasions from 1999 and 2000 when it alleged the companies entered into or gave effect to the arrangements.
On 15 August 2005 the ACCC discontinued proceedings against three respondents: Pegasus Retail Pty Ltd, Mr Bruno Gallucci and Mr Andrew Pitman. The trial against the 15 remaining respondents in the matter was heard before Justice Gray.
The Geelong petrol litigation followed on from the Ballarat petrol price fixing conduct. Penalties totalling $20 million (net after appeal by APCO) were ordered by the Federal Court for price-fixing conduct in the Ballarat petrol market.
