ACCC institutes legal proceedings against stevedores and senior executives for alleged collusion

The Australian Competition and Consumer Commission has today instituted legal proceedings against a number of former Patrick companies* (now owned by either Asciano or Toll) and a number of former P&O companies** (now owned by DP World) for alleged contraventions of section 45 of the Trade Practices Act 1974.

The ACCC has also instituted legal proceedings against Australian Amalgamated Terminals Pty Ltd for its involvement in a number of the alleged contraventions.

The ACCC has also instituted legal proceedings against the following former senior executives of those companies for allegedly having been knowingly concerned in the contraventions:

• Mr Chris Corrigan, former CEO of Patrick Corporation
• Mr Don Smithwick, former director of the Patrick automotive and general stevedoring division
• Mr Andrew Burgess, former Regional Director of P&O Australia & New Zealand, and
• Mr Tim Blood, former Managing Director of P&O Ports and P&O Australia.

The ACCC alleges that in 2001 P&O and Patrick formed an agreement to share their motor vehicle wharf facilities around Australia and to jointly acquire other facilities (First Agreement). The ACCC alleges that the purpose and likely effect of this agreement was to substantially lessen competition between the companies in a number of markets in Sydney, Brisbane, Melbourne and Adelaide.

The ACCC alleges that in 2002 a further agreement was entered into between P&O and Patrick, which extended the areas of cooperation between the companies (Second Agreement).

The ACCC alleges that both agreements sought to fix the prices of P&O and Patrick for the provision of stevedoring services from shared facilities, in contravention of section 45 of the TPA.

The ACCC alleges that the agreements were put into effect by P&O and Patrick in a number of ways during the period 2001 to date, including by the formation of Australian Amalgamated Terminals.

The ACCC is seeking a range of remedies including:

• injunctions
• declarations
• pecuniary penalties, and
• orders preventing the companies from continuing to give effect to the allegedly illegal agreements.

A directions hearing has been listed for 20 September before Justice Sackville of the Federal Court, in Sydney.

Background

* Toll Holdings Limited is the ultimate holding company of:

• - Toll (PRK) Limited (formerly Patrick Corporation Limited)

 Asciano Limited is the ultimate holding company of:

• - Patrick Stevedores Holdings Pty Ltd
• - Patrick Stevedores Operations Pty Ltd
• - Patrick Stevedores Operations No.2 Pty Ltd
• - Plzen Pty Ltd

** DP World Holdings (Australia) Limited (formerly P&O Australia Limited)
 DP World Australia Limited (formerly P&O Ports Limited)
 P&O Wharf Management Pty Ltd