The episode has also attracted class action for damages under ss 82 of the Trade Practices Act by a number of customers, led by the Pharmacists Association of Australia.
Can any agreed statement of facts between DIARCOR and the ACCC be used as evidence against DIARCOR in any subsequent civil damages proceedings that its former clients may be seeking to bring against it
Any agreed statement of facts between DIARCOR and the ACCC is bound to cover issues that the former clients of DIARCOR may be seeking to bring against the latter. It is difficult to predict with certainty whether the statement of fact could be used as evidence by aggrieved clients. It depends on the nature and extent of punitive measures ACCC metes out to DIARCOR. It also depends on the contents of the statement of facts and the court's verdict. As statutory authority, ACCC is in the right position to consider damages under ss 45, 45A and 82 of the Trade Practices Act and submit a proposal to the court that must assuage the grievances of the clients besides settling with a deterrent fine for DIARCOR. (Focus on Competition Law July 2001)
The statement of facts is not a single format. It comes in various forms. Ideally, statement of facts must leave no scope for dispute. However, this is not possible all the time. In some cases, there may be certain points of dispute or contention where the two parties have agreed to disagree for the time being, or which a statutory authority like ACCC has allowed to be left pending due to insufficient time or data with an undertaking to wrap up the pending issues within a certain time limit. (Preparation for Hearing)
There is also the issue that DIARCOR cannot be tried two or more times for the same offence.
The relevant factors that the Court will take into account when assessing the quantum of the pecuniary penalty
The main charge against DIARCOR, DISY and CALENDEX is that they have been involved in the nefarious activity of price fixing for quite some time. The managing director of DIARCOR has informed that they have been involved in the price fixing cartel for about five years. The price fixing arrangements were done verbally in secret rendezvous so that they do not leave any paper trial.
The court will rely on circumstantial evidence in the absence of material proof. The court will also go into the enormity of the contraventions under ss 45, 45A and 82 of the Trade Practices Act 1974. Under these subsections, the court will examine the extent of gains made by unfair means by the price fixing cartel under ss 45, evidence of the price fixing charges regardless of any loss to competition under ss 45A, and losses and/or damages suffered by competition due to the cartel and the quantum of penalties to be imposed on the cartel as fines under ss 45 and 45A (Local Government and the Trade Practices Act), and recoveries for loss suffered on behalf of the competition