The full text of the Judgment of Justice Finkelstein in ACCC v Bridgestone Corporation is now available and worth a look. These are the reasons for his Honour’s order, made on 14 April 2010, accepting orders proposed by the parties following an agreed statement of facts and admissions.
In the course of his reasons for judgment, Justice Finkelstein observed that the principal object of imposing a penalty is deterrence and that, in relation to cartels, as a result of the difficulty of detection, ‘a particularly high penalty is justified’. He noted that courts will give effect to agreed penalties, provided they are within the ‘permissible range’ and set out relevant factors, noting that one of the most important factors will be the effect of the conduct in markets. He accepted that the agreed penalties of $8.235million were within the permissible range, observing that at the time of the contravention the maximum penalty in Australia was $10million.
His Honour went on to compare penalties in other jurisdictions, looking particularly at the process adopted by the European Commission for imposing cartel penalties (although he concluded that the principles adopted there and different limitation periods meant they could not be used for comparison when awarding damages in Australia). His Honour observed, however, that ‘Australian penalties are very much on the low side’ and that they are ‘still something of a light touch notwithstanding the new penalty regime that was introduced in 2006’. He also noted that when setting a penalty the court should not ‘lose sight of the maximum aggregate penalty that can be imposed in a particular case’, observing that there must ‘be some relationship between the maximum penalty and the penalty that is imposed’
His Honour concluded that the agreed penalties were reasonable ‘having regard to the constraints imposed upon a judge in going beyond what the parties have suggested’.
Competition Law 