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The Queen v Nippon Yusen Kabushiki Kaisha

Federal Court of Australia (criminal division), New South Wales Registry

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File details

Prosecutor Commonwealth Director of Public Prosecutions
Accused Nippon Yusen Kabushiki Kaisha
File Number NSD1143/2016
Filing date 14 July 2016
Registry NSW
Docket Justice Wigney
Claim Cartel conduct
Plea NYK pleaded guilty on 18 July 2016.
Sentencing 11 April 2017 (judgment reserved)
Directions Directions hearing held on 7 November 2016 (sentencing dates and associated timeline determined)
Administrative hearing held on 9 September 2016 (this vacated the directions hearing scheduled for 12 September and adjourned the matter until 7 November)
Legal Representative(s) Accused HWL Ebsworth Lawyers
Richard Westmoreland
Legal Representative Prosecutor Sam Indyk
ACCC Press Release

The ACCC released the following press release (MR 125/16) on 18 July:

Following an investigation by the Australian Competition and Consumer Commission (ACCC), Nippon Yusen Kabushiki Kaisha (NYK), a global shipping company based in Japan, has today pleaded guilty to criminal cartel conduct in the Federal Court.

"This is the first criminal charge laid against a corporation under the criminal cartel provisions of the Competition and Consumer Act," ACCC Chairman Rod Sims said.

The charge was laid by the Commonwealth Director of Public Prosecutions (CDPP) under section 44ZZRG of the Competition and Consumer Act 2010 (Cth) on 14 July 2016.

"This matter relates to alleged cartel conduct in connection with the transportation of vehicles, including cars, trucks, and buses, to Australia between July 2009 and September 2012," Mr Sims said.

NYK is one of the world’s largest shipping companies, with offices in Europe, Africa, East Asia, South Asia, China, Oceania (including Australia) and North and South America. It has over 33,000 employees and its headquarters is in Tokyo. It also operates an Australian subsidiary, NYK Line (Australia) Pty Ltd.

For corporations, the maximum fine for each criminal cartel offence will be the greater of:

  • $10 million;
  • three times the total benefits that have been obtained and are reasonably attributable to the commission of the offence;
  • if the total value of the benefits cannot be determined,10% of the corporation’s annual turnover connected with Australia.

The ACCC’s investigation into other alleged cartel participants is continuing.

The matter is next scheduled for a directions hearing in the Federal Court on 12 September 2016.

Given this is a criminal matter currently before the Court, the ACCC will not provide any further comment at this time.

Background

The ACCC investigates cartel conduct, manages the immunity process, takes proceedings in the Federal Court in respect of civil cartel contraventions, and refers serious cartel conduct to the CDPP for consideration for prosecution.  The CDPP is responsible for prosecuting criminal cartel offences, in accordance with the Prosecution Policy of the Commonwealth. 

 

Media and commentary

ACCC

ACCC, 'Australia’s first criminal cartel charge laid against NYK' (Media Release, 18 July 2016)

Law firm commentary

Clayton Utz: 'Australia pursues first criminal cartel prosecution' (Clayton Utz, Knowledge, 20 July 2016)

Gilbert + Tobin: Gilbert + Tobin, 'Corporate Crime + Investigations' (eComms, July 2016); Elizabeth Avery, Chris Boyd, Gina Cass-Gottlieb, Steven Glass, Andrew Floro and Stephanie Wee, 'Japanese shipping company NYK pleads guilty to criminal cartel conduct in inaugural Australian prosecution' (Insights, 21 July 2016)

King&Wood Mallesons: Wayne Leach and Peta Stevenson, James Darch and Taylor Macdonald, 'ACCC Charting New Waters with First Criminal Cartel Prosecution' (In Competition, 22 July 2016)

News media

John Durie and Ben Butler, 'ACCC launches criminal cartel case against Japanese shipper NYK' (The Australian, 15 July 2016)

John Durie, 'ACCC bares teeth with criminal case against Japan's NYK' (The Australian, 16 July 2016)

Daniel Palmer, 'ACCC succeeds in shipping cartel case against Jana's NYK' (The Australian, 18 July 2016)

John Durie, 'Under the hood of a car cartel' (The Australian, 18 July 2016)

Reuters 'ACCC says Japanese shipping giant Nippon Yusen pleads guilty to cartel conduct' (SMH, 18 July 2016)

Rebecca Thurlow, 'Japanese Shipping Company NYK Pleads Guilty to Criminal-Cartel Conduct in Australia’s Federal Court' (The Wall Street Journal, 17 July 2016 (US ET time))

Lilly Vitorovich (AAP), 'Shipping giant guilty on cartel charge' (Yahoo 7 News, 18 July 2016)

Misa Han, 'ACCC bags first criminal cartel case against Nippon Yusen Kabushiki Kaisha' (AFR, 18 July 2016)