Visy loses bid to challenge Appeal Court ruling, will have to settle cartel case in High Court
Nov. 28 (BusinessDesk) - Visy Board has missed out on a chance to challenge a Court of Appeal ruling upholding the
Commerce Commission's right to pursue the Australian packaging company and a former executive over an alleged cartel.
The Supreme Court declined Visy's application for leave to appeal, with Chief Justice Sian Elias and Justices John
McGrath and Susan Glazebrook saying the appeal court ruling was "provisional and may be overtaken by re-assessment when
the evidence is heard," according to a judgment published today. An appeal wouldn't remove all matters in the
proceedings, nor shorten the hearing, the bench said.
"The Court of Appeal was careful to recognise that it should be cautious in attaching jurisdiction to a foreign
defendant," the judgment said. "If any matter of principle in the application of the provision of the Commerce Act to
the facts as found arises, it can be raised at trial where it can be determined in context."
In August, the Court of Appeal overturned a High Court ruling reducing the number of claims the antitrust regulator
could pursue against the Australian company and its former general manager Rod Carroll, saying the lower court erred in
rejecting a much wider pattern of alleged cartel behaviour in the New Zealand packaging market.
The Federal Court of Australia has already imposed penalties of A$36 million on Visy Board and its owner, Richard Pratt,
and A$500,000 on Carroll. But the company and the executive have denied the cartel arrangements extended to New Zealand
and objected to the commission pursuing its claims here.
The commission contends Visy and rival Amcor had a broad understanding in Australia, referred to as the ‘overarching
understanding’ on market sharing and price fixing which was subsequently extended to New Zealand. Below this was what it
called “a series of discreet understandings” in relation to New Zealand supply contracts.
Amcor made a request for leniency under Australian and New Zealand antitrust rules. Leniency rules are designed to
encourage cartel members to cooperate with antitrust investigations to help ensure successful prosecution while
mitigating their own punishments.
Visy and Amcor compete with Carter Holt Harvey in the New Zealand packaging market.
(BusinessDesk)