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Visy Board denied Supreme Court challenge

Wednesday 28 Nov 2012 2:37 p.m.

The Supreme Court will not hear an appeal by Visy Board against upholding the Commerce Commission's right to pursue it over an alleged cartel (file pic)

The Supreme Court will not hear an appeal by Visy Board against upholding the Commerce Commission's right to pursue it over an alleged cartel (file pic)

Visy Board has been denied 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".

Their judgment published today says an appeal wouldn't remove all matters in the proceedings, nor shorten the hearing.

"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 Visy 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 $A36 million on Visy and its owner, Richard Pratt, and $A500,000 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.

The commission contends Visy and rival Amcor had a broad understanding in Australia 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 co-operate 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.

NZN

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