The Australian Competition and Consumer Commission (ACCC) air cargo litigation – a series of high-profile cases alleging collusion on fuel and other surcharges for air cargo services – culminated in a series of hearings in 2012 and 2013.

A team of AGS lawyers conducted litigation on behalf of the ACCC against 15 international airlines. AGS helped the ACCC prepare for proceedings between 2008 and 2012 and assisted with prosecution in Federal Court hearings and defence of appeals to the Full Federal Court and the High Court during 2012 and 2013.

As well as pursuing the contested litigation, AGS helped achieve mediated outcomes where appropriate. To date, proceedings against almost all respondents have been successfully resolved, with court-ordered civil penalties so far totalling $98.5 million and expected to exceed $100 million. The outcomes have allowed the ACCC to demonstrate its determination to pursue cartel arrangements made here or overseas by foreign corporations where they impact on Australian prices and consumers.

Glenn Owbridge (Special Counsel, Competition and Consumer Law) headed the national team of AGS practitioners who worked on these cases. Jody Marshall (Senior Executive Lawyer) managed and coordinated the national team, playing an integral role in the case strategy and development. Core team members included Matthew Crowley (Senior Executive Lawyer), Rebecca Daumont (Senior Lawyer), Tony Giugni (Senior Lawyer) and Kathryn Gordon (Senior Lawyer).

The air cargo litigation has been described by the ACCC as its biggest investigation ever. Notable aspects of the cases included:

  • application of the Competition and Consumer Act 2010 (formerly the Trade Practices Act 1974) to overseas entities for conduct occurring partly in Australia and partly overseas, and the resultant challenges presented to the ACCC's powers to issue compulsory notices
  • complexities resulting from the impact of foreign government ownership of some of the airlines
  • unprecedented testing of the parameters of price fixing under the Act.

AGS and ACCC teams worked intensively, particularly over 2012–13, to address these complex legal issues, resulting in ground-breaking decisions that will clarify the law for future regulatory and enforcement action as well as general litigation.

This is an extract from the 2012–13 AGS annual report