Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd and Ors (No 3)

[2007] FCA 1617
244 ALR 673

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Australian Competition and Consumer Commission
v Visy Industries Holdings Pty Ltd and Others (No 3)

Court:

Judge: Heerey J

Hearing date: 16 October 2007
Judgment date: 2 November 2007

Melbourne

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Orders

(1) The third respondent (Visy), by making a contract or arrangement or arriving at an understanding with Amcor Ltd (Amcor) in approximately January-April 2000 containing provisions that:

(i)

Visy and Amcor would permit each other to maintain approximately their then current share of the market in Australia for the supply of corrugated fibreboard packaging (CFP);

(ii)

Visy and Amcor would not seek to enter into contracts for the supply of CFP with each other's principal CFP customers;

(iii)

if, for one reason or another, Visy did enter into a contract for the supply of CFP with a principal CFP customer of Amcor, then Visy would not prevent or seek to prevent Amcor from entering into a supply contract with a customer or customers of Visy in order to replace the share of the market in Australia for the supply of CFP (CFP market) that Amcor had lost as a result of losing the supply contract to Visy;

(iv)

if, for one reason or another, Amcor did enter into a contract for the supply of CFP with a principal CFP customer of Visy, then Amcor would not prevent or seek to prevent Visy from entering into a supply contract with a customer or customers of Amcor in order to replace the share of the CFP market that Visy had lost as a result of losing the supply contract to Amcor;

(v)

Visy and Amcor would, in future, collaborate with each other in order to increase the prices at which they supplied CFP in the CFP market from their then current levels;

(vi)

Visy would appoint the sixth respondent (Carroll) as its nominated contact person with Amcor for the purpose of effecting the implementation of the contract, arrangement or understanding; and

(vii)

Amcor would appoint Edward Laidlaw as its nominated contact person with Visy for the purpose of effecting the implementation of the contract, arrangement or understanding,

made a contract or arrangement or arrived at an understanding (the "over-arching understanding") which:

(A)

contained an exclusionary provision, within the meaning of s 4D of the Trade Practices Act 1974 (Cth) (the TPA), and thereby engaged in conduct in contravention of s 45(2)(a)(i) of the TPA; and

(B)

contained a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(a)(ii) of the TPA.

(2) By engaging in each instance of:

(a)

the conduct alleged in paras 22-27, 29, 30, 32 and 33 of the second further amended statement of claim;

(ab)

the conduct constituted by the fourth respondent (Pratt) meeting with the CEO of Amcor, Mr Russell Jones (Jones) at his request on 21 May 2001 and communicating to Jones that Visy would adhere to an understanding that the fifth respondent (Debney) had reached with Mr Peter Brown of Amcor (Brown) being the over-arching understanding referred to in para 1 above;

(b)

the conduct alleged in para 37 of the second further amended statement of claim;

(c)

the conduct alleged in paras 41, 42 and 44 of the second further amended statement of claim;

(d)

the conduct alleged in para 49 of the second further amended statement of claim;

(e)

the conduct alleged in paras 54 and 56 of the second further amended statement of claim;

(f)

the conduct alleged in para 60 of the second further amended statement of claim;

(g)

the conduct alleged in paras 64, 65, 67 and 69 of the second further amended statement of claim;

(h)

the conduct alleged in para 73 of the second further amended statement of claim;

(i)

the conduct alleged in paras 77, 78 and 85 of the second further amended statement of claim;

(j)

the conduct alleged in para 91 of the second further amended statement of claim;

(k)

the conduct alleged in paras 95, 96 and 99 of the second further amended statement of claim;

(l)

the conduct alleged in para 107 of the second further amended statement of claim;

(m)

the conduct alleged in paras 111, 111A, 111B, 111C, 112, 112B, 112C, 113 and 113A of the further amended statement of claim;

(n)

the conduct alleged in para 119A of the second further amended statement of claim;

(o)

the conduct alleged in paras 119E, 119G and 119H of the second further amended statement of claim;

(p)

the conduct alleged in para 120 of the second further amended statement of claim;

(q)

the conduct alleged in paras 127 and 130 of the second further amended statement of claim;

(r)

the conduct alleged in para 135 of the second further amended statement of claim;

(s)

the conduct alleged in paras 139, 140, 142, 143, 145, 146 and 147 of the second further amended statement of claim;

(t)

the conduct alleged in para 153 of the second further amended statement of claim;

(u)

the conduct alleged in paras 158 and 160 of the second further amended statement of claim;

(v)

the conduct alleged in para 163A of the second further amended statement of claim;

(w)

the conduct alleged in paras 163E, 163G, 163H and 163I of the second further amended statement of claim;

(x)

the conduct alleged in para 163AA of the second further amended statement of claim;

(y)

the conduct alleged in paras 163EA, 163EE, 163KK and 163MM of the second further amended statement of claim;

(z)

the conduct alleged in para 164 of the second further amended statement of claim;

(aa)

the conduct alleged in paras 169 and 171 of the second further amended statement of claim;

(bb)

the conduct alleged in para 175 of the second further amended statement of claim;

(cc)

the conduct alleged in paras 181 and 183 of the second further amended statement of claim;

(dd)

the conduct alleged in para 187A of the second further amended statement of claim;

(ee)

the conduct alleged in paras 187F, 187G, 187I, 187J, and 187N of the second further amended statement of claim;

(ff)

the conduct alleged in para 188 of the second further amended statement of claim;

(gg)

the conduct alleged in paras 194, 195 and 198 of the second further amended statement of claim;

(hh)

the conduct alleged in para 204 of the second further amended statement of claim; and

(ii)

the conduct alleged in paras 208, 210, 213 and 214 of the second further amended statement of claim,

Visy gave effect to a provision of the over-arching understanding that:

(i)

was an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(b)(i) of the TPA; and

(ii)

was a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(b)(ii) of the TPA.

(3) By making a contract or arrangement or arriving at an understanding with Amcor in approximately January-March 2000 containing provisions that:

(a)

Visy would increase its prices for CFP supplied to its non-contract customers by approximately 7% with effect from about May 2000; and

(b)

Amcor would increase its prices for CFP supplied to its non-contract customers by approximately 7% with effect from about May 2000,

Visy made a contract or arrangement or arrived at an understanding (the "2000 price increase understanding") which contained a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(a)(ii) of the TPA.

(4) By engaging in the conduct alleged in paras 41, 42 and 44 (in respect of most of its non-contract customers) of the second further amended statement of claim, Visy gave effect to a provision of the 2000 price increase understanding that was a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(b)(ii) of the TPA.

(5) By making a contract or arrangement or arriving at an understanding with Amcor in approximately October 2000 to approximately January 2001 containing provisions that:

(a)

Visy would increase its prices for CFP supplied to its non-contract customers by approximately 8.25% with effect from about early April 2001; and

(b)

Amcor would increase its prices for CFP supplied to its non-contract customers by approximately 8.5% with effect from about mid-March 2001.

Visy made a contract or arrangement or arrived at an understanding (the "2001 price increase understanding") which contained a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(a)(ii) of the TPA.

(6) By engaging in the conduct alleged in paras 54 and 56 (in respect of most of its non-contract customers) of the second further amended statement of claim, Visy gave effect to a provision of the 2001 price increase understanding that was a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(b)(ii) of the TPA.

(7) By making a contract or arrangement or arriving at an understanding with Amcor in approximately early 2001 containing provisions that:

(a)

Amcor would compensate Visy for the CFP volume Visy had lost as a result of Amcor entering into a supply agreement with Visy's former customer, Lion Nathan Australia Pty Ltd (LNA); and

(b)

Amcor would allow Visy to enter into a CFP supply agreement with Inghams Enterprises Pty Ltd (Inghams), an existing customer of Amcor, as compensation to Visy for Amcor entering into a CFP supply agreement with LNA,

Visy made a contract or arrangement or arrived at an understanding (the Inghams compensation understanding) which:

(i)

contained an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(a)(i) of the TPA; and

(ii)

contained a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(a)(ii) of the TPA.

(8) By engaging in the conduct alleged in paras 64, 65, 67 and 69 of the second further amended statement of claim, Visy gave effect to a provision of the Inghams compensation understanding that:

(a)

was an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(b)(i) of the TPA; and

(b)

was a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(b)(ii) of the TPA.

(9) By making a contract or arrangement or arriving at an understanding with Amcor in approximately early 2001 containing provisions that:

(a)

Visy would not seek to enter into contracts for the supply of CFP to Goodman Fielder Ltd (GFL) and Nestle Australia Ltd (Nestle), two of Amcor's principal customers; and

(b)

if GFL or Nestle requested Visy to provide a quote for the supply of CFP, Visy would quote prices higher than the prices Amcor quoted to GFL and Nestle,

Visy made a contract or arrangement or arrived at an understanding (the "GFL & Nestle price understanding") which:

(i)

contained an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(a)(i) of the TPA; and

(ii)

contained a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(a)(ii) of the TPA.

(10) By engaging in the conduct alleged in paras 77, 78 and 85 of the second further amended statement of claim, Visy gave effect to a provision of the GFL & Nestle price understanding that:

(a)

was an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(b)(i) of the TPA; and

(b)

was a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(b)(ii) of the TPA.

(11) By making a contract or arrangement or arriving at an understanding with Amcor in approximately January 2001 to approximately March 2001 containing provisions that:

(a)

Amcor would not seek to enter into a contract for the supply of CFP to Fosters Brewing Group Ltd (Fosters), a principal customer of Visy;

(b)

Amcor would quote prices to Fosters higher than the prices Visy quoted to Fosters;

(c)

Amcor would not seek to enter into a contract for the supply of CFP to Coca Cola Amatil Ltd (Coke), a principal customer of Visy; and

(d)

Amcor would quote prices to Coke higher than the prices Visy quoted to Coke,

Visy made a contract or arrangement or arrived at an understanding (the "Fosters & Coke price understanding") which:

(i)

contained an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(a)(i) of the TPA; and

(ii)

contained a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(a)(ii) of the TPA.

(12) By engaging in the conduct alleged in paras 95, 96 and 99 of the second further amended statement of claim, Visy gave effect to a provision of the Fosters & Coke price understanding (in so far as it relates to Fosters) that:

(a)

was an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(b)(i) of the TPA; and

(b)

was a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(b)(ii) of the TPA.

(13) By making a contract or arrangement or arriving at an understanding with Amcor in approximately mid-2001 containing provisions that:

(a)

Visy would compensate Amcor for the CFP volume Amcor had lost as a result of Visy entering into supply agreements with Amcor's former customers Inghams and The Smith's Snackfood Co Ltd (Smith's); and

(b)

Visy would allow Amcor to enter into a CFP supply agreement with George Weston Foods Ltd (GWF), an existing customer of Visy, as compensation to Amcor for Visy entering into CFP supply agreements with Inghams and Smiths,

Visy made a contract or arrangement or arrived at an understanding (the "GWF compensation understanding") which:

(i)

contained an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(a)(i) of the TPA; and

(ii)

contained a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(a)(ii) of the TPA.

(14) By engaging in the conduct alleged in paras 111, 111A, 111B, 111C, 112, 112B, 112C, 113 and 113A of the second further amended statement of claim, Visy gave effect to a provision of the GWF compensation understanding that:

(a)

was an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(b)(i) of the TPA; and

(b)

was a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(b)(ii) of the TPA.

(15) By making a contract or arrangement or arriving at an understanding with Amcor in approximately mid-2001 containing provisions that:

(a)

Visy would compensate Amcor for the CFP volume Amcor had lost as a result of Visy entering into supply agreements with Amcor's former customers Inghams and Smith's; and

(b)

Visy would allow Amcor to enter into a CFP supply agreement with OSI International Foods (Aust) Ltd (OSI), an existing customer of Visy, in respect of OSI's CFP requirements in NSW, as compensation to Amcor for Visy entering into CFP supply agreements with Inghams and Smith's,

Visy made a contract or arrangement or arrived at an understanding (the "OSI/Hans compensation understanding") which:

(i)

contained an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(a)(i) of the TPA; and

(ii)

contained a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(a)(ii) of the TPA.

(16) By engaging in the conduct alleged in paras 119E, 119G and 119H of the second further amended statement of claim, Visy gave effect to a provision of the OSI/Hans compensation understanding that:

(a)

was an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(b)(i) of the TPA; and

(b)

was a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(b)(ii) of the TPA.

(17) By making a contract or arrangement or arriving at an understanding with Amcor in approximately late August 2001 to approximately December 2001 containing provisions that:

(a)

Visy would compensate Amcor for the CFP volume Amcor had lost as a result of Visy entering into a supply agreement with Mrs Crockett's Kitchen Pty Ltd (Mrs Crockett's), formerly a customer of Amcor; and

(b)

Visy would allow Amcor to enter into a CFP supply agreement with Merino Pty Ltd (formerly Paper Converting Pty Ltd) (Merino), an existing customer of Visy, as compensation to Amcor for Visy entering into a CFP supply agreement with Mrs Crockett's,

Visy made a contract or arrangement or arrived at an understanding (the "Merino compensation understanding") which:

(i)

contained an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(a)(i) of the TPA; and

(ii)

contained a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(a)(ii) of the TPA.

(18) By engaging in the conduct alleged in paras 127 and 130 of the second further amended statement of claim, Visy gave effect to a provision of the Merino compensation understanding that:

(a)

was an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(b)(i) of the TPA; and

(b)

was a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(b)(ii) of the TPA.

(19) By making a contract or arrangement or arriving at an understanding with Amcor in approximately early December 2001 containing provisions to the effect that:

(a)

both Visy and Amcor would seek a continuation of the their then current supply of CFP to Mildura Fruit Co (MFC) whereby part of the customer's requirements was supplied by Visy and the remainder was supplied by Amcor;

(b)

Amcor would increase its prices for CFP supplied by it to MFC by approximately the same amount as Visy with effect from the expiration of the term of Amcor's then current supply agreement with MFC on 31 May 2002; and

(c)

Visy would increase its prices for CFP supplied by it to MFC by approximately the same amount as Amcor with effect from the expiration of the term of Visy's then current supply agreement with MFC on 31 March 2002,Visy made a contract or arrangement or arrived at an understanding (the "MFC price increase understanding") which:

(i)

contained an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(a)(i) of the TPA; and

(ii)

contained a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(a)(ii) of the TPA.

(20) By engaging in the conduct alleged in paras 139, 140, 142, 143 and 145 to 147 of the second further amended statement of claim, Visy gave effect to a provision of the MFC price increase understanding that:

(a)

was an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(b)(i) of the TPA; and

(b)

was a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(b)(ii) of the TPA.

(21) By making a contract or arrangement or arriving at an understanding with Amcor in approximately December 2001 to approximately February 2002 containing provisions that:

(a)

subject to making some exceptions of its own choosing, Amcor would increase its prices for CFP supplied to its non-contract customers by approximately 3.75% with effect from about mid-March 2002; and

(b)

subject to making some exceptions of its own choosing, Visy would increase its prices for CFP supplied to its non-contract customers by approximately 3.25% with effect from about early April 2002,

Visy made a contract or arrangement or arrived at an understanding (the "2002 price increase understanding") which contained a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(a)(ii) of the TPA.

(22) By engaging in the conduct alleged in paras 158 and 160 (in respect of most of its non-contract customers) of the second further amended statement of claim, Visy gave effect to a provision of the 2002 price increase understanding that was a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(b)(ii) of the TPA.

(23) By making a contract or arrangement or arriving at an understanding with Amcor in approximately mid to late April 2002 containing provisions that:

(a)

both Visy and Amcor would seek a continuation of their then current supply of CFP to National Foods Ltd (National Foods) whereby part of the customer's requirements was supplied by Amcor and the remainder was supplied by Visy;

(b)

both Visy and Amcor would ensure that their tender prices to supply CFP to National Foods reflected the additional CFP manufacturing costs which would be required to meet National Foods product specifications;

(c)

Visy and Amcor would discuss with each other the prices each proposed to include in its tender to supply CFP to National Foods; and

(d)

in respect of the parts of National Foods CFP requirements supplied by the other (the "incumbent supplier"), both Visy and Amcor would submit CFP tender prices to National Foods which were generally higher than those submitted to National Foods by the incumbent supplier.

Visy made a contract or arrangement or arrived at an understanding (the "National Foods price understanding") which:

(i)

contained an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(a)(i) of the TPA; and

(ii)

contained a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(a)(ii) of the TPA.

(24) By engaging in the conduct alleged in paras 163E, 163G to 163I of the second further amended statement of claim, Visy gave effect to a provision of the National Foods price understanding that:

(a)

was an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(b)(i) of the TPA; and

(b)

was a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(b)(ii) of the TPA.

(25) By making a contract or arrangement or arriving at an understanding with Amcor in approximately December 2002 to approximately January 2003 containing provisions that:

(a)

subject to making some exceptions of its choosing, Amcor would increase its prices for CFP supplied to its non-contract customers by approximately 3.5% with effect from about early March 2003; and

(b)

subject to making some exceptions of its choosing, Visy would increase its prices for CFP supplied to its non-contract customers by approximately 3.25% with effect from about mid-March 2003,

Visy made a contract or arrangement or arrived at an understanding (the "2003 price increase understanding") which contained a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(a)(ii) of the TPA.

(26) By engaging in the conduct alleged in paras 169 and 171 of the second further amended statement of claim, Visy gave effect to a provision of the 2003 price increase understanding that was a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(b)(ii) of the TPA.

(27) By making a contract or arrangement or arriving at an understanding with Amcor in approximately July 2003 containing provisions that:

(a)

Visy would compensate Amcor for the CFP volume Amcor had lost as a result of Visy entering into a supply agreement with Huhtamaki Australia Ltd (Huhtamaki), formerly a customer of Amcor; and

(b)

Visy would allow Amcor to enter into a CFP supply agreement with Gillette Australia Pty Ltd (Gillette), an existing customer of Visy, as compensation to Amcor for Visy entering into a supply agreement with Huhtamaki,

Visy made a contract or arrangement or arrived at an understanding (the "Gillette compensation understanding") which:

(i)

contained an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(a)(i) of the TPA; and

(ii)

contained a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(a)(ii) of the TPA.

(28) By engaging in the conduct alleged in paras 181 and 183 of the second further amended statement of claim, Visy gave effect to a provision of the Gillette compensation understanding that:

(a)

was an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(b)(i) of the TPA; and

(b)

was a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(b)(ii) of the TPA.

(29) By making a contract or arrangement or arriving at an understanding with Amcor in approximately early 2003 containing provisions that:

(a)

Visy would not seek to enter into a contract for the supply of CFP to Parmalat Australia Ltd (Parmalat), one of Amcor's then principal customers;

(b)

Visy would discuss with Amcor the prices Visy proposed to include in its tender to Parmalat; and

(c)

Visy would submit CFP tender prices to Parmalat which were higher than those submitted by Amcor to Parmalat,

Visy made a contract or arrangement or arrived at an understanding (the "Parmalat price understanding") which:

(i)

contained an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(a)(i) of the TPA; and

(ii)

contained a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(a)(ii) of the TPA.

(30) By engaging in the conduct alleged in paras 187F, 187G, 1871, 187J and 187N of the second further amended statement of claim, Visy gave effect to a provision of the Parmalat price understanding that:

(a)

was an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(b)(i) of the TPA; and

(b)

was a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(b)(ii) of the TPA.

(31) By making a contract or arrangement or arriving at an understanding with Amcor in approximately May 2004 to approximately June 2004 containing provisions that:

(a)

Visy would not seek to enter into a contract for the supply of CFP to the Food & Beverage division of Cadbury Schweppes Pty Ltd (Cadbury Schweppes), one of Amcor's then principal customers;

(b)

Visy would discuss with Amcor the prices Visy proposed to include in its tender to Cadbury Schweppes; and

(c)

Visy would submit CFP tender prices to Cadbury Schweppes which were higher than those submitted by Amcor to Cadbury Schweppes.

Visy made a contract or arrangement or arrived at an understanding (the "Cadbury Schweppes price understanding") which:

(i)

contained an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(a)(i) of the TPA; and

(ii)

contained a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(a)(ii) of the TPA.

(32) By engaging in the conduct alleged in paras 194, 195 and 198 of the second further amended statement of claim, Visy gave effect to a provision of the Cadbury Schweppes price understanding that:

(a)

was an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(b)(i) of the TPA; and

(b)

was a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(b)(ii) of the TPA.

(33) By making a contract or arrangement or arriving at an understanding with Amcor in approximately July 2004 to approximately October 2004 containing provisions that:

(a)

both Visy and Amcor would seek a continuation of their then current supply of CFP to Hardy Wine Co Pty Ltd (Hardy) whereby part of the customer's requirements was supplied by Visy and the remainder was supplied by Amcor;

(b)

Visy and Amcor would discuss with each other the prices each proposed to include in its tender to supply CFP to Hardy; and

(c)

in respect of the parts of Hardy's CFP requirements supplied by the other (the "incumbent supplier"), both Visy and Amcor would submit CFP tender prices to Hardy which were generally higher than those submitted to Hardy by the incumbent supplier,

Visy made a contract or arrangement or arrived at an understanding (the "Hardy price understanding") which:

(i)

contained an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(a)(i) of the TPA; and

(ii)

contained a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(a)(ii) of the TPA.

(34) By engaging in the conduct alleged in paras 208, 210, 213 and 214 of the second further amended statement of claim, Visy gave effect to a provision of the Hardy price understanding that:

(a)

was an exclusionary provision, within the meaning of s 4D of the TPA, and thereby engaged in conduct in contravention of s 45(2)(b)(i) of the TPA; and

(b)

was a provision that had the purpose or the effect or was likely to have the effect of substantially lessening competition in the CFP market, and thereby engaged in conduct in contravention of s 45(2)(b)(ii) of the TPA.

(35) Pratt was directly or indirectly, knowingly concerned in the contravention of the TPA by Visy referred to in subpara (ab) of para 2 above, within the meaning of ss 76(1)(e) and 80(1)(e) of the TPA.

(36) Debney was, directly or indirectly, knowingly concerned in, or party to, the contraventions of the TPA by Visy referred to in:

(a)

para 1 above;

(b)

subpara (a) of para 2 above;

(c)

subpara (b) of para 2 above;

(d)

subpara (f) of para 2 above;

(e)

subpara (j) of para 2 above;

(f)

subpara (l) of para 2 above;

(g)

subpara (n) of para 2 above;

(h)

subpara (z) of para 2 above;

(i)

para 3 above;

(j)

para 7 above;

(k)

para 11 above;

(l)

para 13 above;

(m)

para 15 above; and

(n)

para 25 above,

within the meaning of ss 76(1)(e) and 80 (1) (e) of the TPA.

(37) Carroll was, directly or indirectly, knowingly concerned in, or party to, the contraventions of the TPA by Visy referred to in:

(a)

subpara (a) of para 2 above, in so far as it refers to paras 22-26 and 33 of the second further amended statement of claim;

(b)

subpara (d) of para 2 above;

(c)

subpara (g) of para 2 above;

(d)

subpara (h) of para 2 above;

(e)

subpara (i) of para 2 above;

(f)

subpara (k) of para 2 above, save that para 96 of the second further amended statement of claim is to be taken to be amended to accord with para 168 of the agreed statement of facts dated 5 October 2007 agreed by the parties to this proceeding pursuant to s 191 of the Evidence Act 1995 (Cth) (agreed statement of facts)

(g)

subpara (l) of para 2 above;

(h)

subpara (m) of para 2 above;

(i)

subpara (n) of para 2 above;

(j)

subpara (o) of para 2 above;

(k)

subpara (p) of para 2 above;

(l)

subpara (r) of para 2 above;

(m)

subpara (s) of para 2 above;

(n)

subpara (t) of para 2 above;

(o)

subpara (v) of para 2 above;

(p)

subpara (w) of para 2 above;

(q)

subpara (x) of para 2 above;

(r)

subpara (y) of para 2 above;

(s)

subpara (z) of para 2 above;

(t)

subpara (bb) of para 2 above;

(u)

subpara (dd) of para 2 above;

(v)

subpara (ee) of para 2 above;

(w)

subpara (ff) of para 2 above;

(x)

subpara (gg) of para 2 above, save that para 194 of the second further amended statement of claim is to be taken to be amended to accord with paras 343 and 344 of the agreed statement of facts;

(y)

subpara (hh) of para 2 above;

(z)

subpara (ii) of para 2 above;

(aa)

para 5 above;

(bb)

para 8 above;

(cc)

para 9 above;

(dd)

para 10 above;

(ee)

para 12 above, save that para 96 of the second further amended statement of claim is to be taken to be amended to accord with para 168 of the agreed statement of facts;

(ff)

para 13 above;

(gg)

para 14 above;

(hh)

para 15 above;

(ii)

para 16 above;

(jj)

para 17 above;

(kk)

para 19 above;

(ll)

para 20 above;

(mm)

para 21 above;

(nn)

para 23 above;

(oo)

para 24 above;

(pp)

para 25 above;

(qq)

para 27 above;

(rr)

para 29 above;

(ss)

para 30 above;

(tt)

para 31 above;

(uu)

para 32 above, save that para 194 of the second further amended statement of claim is taken to be amended to accord with paras 343 and 344 of the agreed statement of facts;

(vv)

para 33 above; and

(ww)

para 34 above,

within the meaning of ss 76(1)(e) and 80 (1) (e) of the TPA.

Pecuniary Penalties

(38) An order that Visy pay a pecuniary penalty in the sum of $36m.

(39) An order that Debney pay a pecuniary penalty in the sum of $1,500,000.

(40) An order that Carroll pay a pecuniary penalty in the sum of $500,000.

Injunctive orders

(41) Visy be permanently restrained, whether by its directors, servants or agents or otherwise howsoever, from:

(a)

making a contract or arrangement or arriving at an understanding with Amcor containing one or more of the following provisions or provisions to like effect, namely that:

(i)

Visy and Amcor permit each other to maintain approximately their current share of the market in Australia for the supply of CFP;

(ii)

Visy and Amcor not seek to enter into contracts for the supply of CFP with each other's CFP customers;

(iii)

if, for one reason or another, Visy entered into a contract for the supply of CFP with a CFP customer of Amcor, then Visy not prevent or seek to prevent Amcor from entering into a supply contract with a customer or customers of Visy in order to replace the share of the CFP market that Amcor had lost as a result of losing the supply contract to Visy;

(iv)

if, for one reason or another, Amcor entered into a contract for the supply of CFP with a CFP customer of Visy, then Amcor not prevent or seek to prevent Visy from entering into a supply contract with a customer or customers of Amcor in order to replace the share of the CFP market that Visy had lost as a result of losing the supply contract to Amcor; or

(v)

Visy and Amcor collaborate with each other in order to increase the prices at which they supplied CFP in the CFP market from their then current levels;

(b)

giving effect to any contract, arrangement or understanding with Amcor containing any provision or provision to like effect as one or more of the provisions set out in subpara (a) above;

(c)

requesting Amcor to quote a price or prices to a purchaser or potential purchaser of CFP at or above a level proposed by Visy;

(d)

requesting Amcor to compensate Visy for the loss by Visy to Amcor of any account for the supply of CFP; or

(e)

communicating to Amcor any price or prices at which Visy supplies or proposes to supply CFP to a customer or customers in Australia pursuant to any contract, arrangement or understanding with Amcor containing any provision referred to in subpara (a) above or provision to like effect.

(42) Each of Pratt, Debney and Carroll be permanently restrained, by themselves, their servants or agents or otherwise howsoever, from being in any way, directly or indirectly, knowingly concerned in, or party to, any conduct of Visy in:

(a)

making a contract or arrangement or arriving at an understanding with Amcor containing one or more of the following provisions or provisions to like effect, namely that:

(i)

Visy and Amcor permit each other to maintain approximately their current share of the market in Australia for the supply of CFP;

(ii)

Visy and Amcor not seek to enter into contracts for the supply of CFP with each other's CFP customers;

(iii)

if, for one reason or another, Visy entered into a contract for the supply of CFP with a CFP customer of Amcor, then Visy not prevent or seek to prevent Amcor from entering into a supply contract with a customer or customers of Visy in order to replace the share of the CFP market that Amcor had lost as a result of losing the supply contract to Visy;

(iv)

if, for one reason or another, Amcor entered into a contract for the supply of CFP with a CFP customer of Visy, then Amcor not prevent or seek to prevent Visy from entering into a supply contract with a customer or customers of Amcor in order to replace the share of the CFP market that Visy had lost as a result of losing the supply contract to Amcor; or

(v)

Visy and Amcor collaborate with each other in order to increase the prices at which they supplied CFP in the CFP market from their then current levels;

(b)

giving effect to any contract, arrangement or understanding with Amcor containing any provision or provisions to like effect as one or more of the provisions set out in subpara (a) above;

(c)

requesting Amcor to quote a price or prices to a purchaser or potential purchaser of CFP at or above a level proposed by Visy;

(d)

requesting Amcor to compensate Visy for the loss by Visy to Amcor of any account for the supply of CFP; or

(e)

communicating to Amcor any price or prices at which Visy supplies or proposes to supply CFP to a customer or customers in Australia pursuant to any contract, arrangement or understanding with Amcor containing any provision referred to in subpara (a) above or provision to like effect.

Other orders

(43) Pratt and each of the first, second and third respondents shall implement within 4 months from the date of these orders, and undertake, at Mr Pratt's expense, for a period of 3 years from the date of implementation, a trade practices compliance program that is in accordance with the Australian Standard for Compliance Programs AS-3806-1998 and provides for implementation of the program to be audited by an independent auditor, and is in a form agreed with the ACCC or approved by the court, with regard to s 45 of the TPA.

(44) Visy shall pay the costs of the ACCC of and incidental to this proceeding.