Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd

JAGOT J: 1 These reasons for judgment explain why I made orders on 28 April 2016 imposing civil penalties on Colgate-Palmolive Pty Ltd (Colgate) and one of its employees, Paul Ansell. Amongst other orders I imposed on Colgate: (1) a pecuniary penalty in the amount of $12,000,000 for its admitted contraventions of: (a) s 45(2)(a)(i) of the Trade Practices Act 1974 (Cth) (TPA), by Colgate entering into an understanding with PZ Cussons Australia Pty Ltd (Cussons), and Unilever Australia Limited (Unilever) (the Withhold Supply Understanding) containing provisions with the substantial purpose of limiting the supply to Woolworths Limited (Woolworths), Coles Group Pty Ltd (Coles) and Metcash Limited (Metcash) of ultra-concentrated laundry detergents (Ultra Concentrates) until in or around February 2009 and standard-concentrated laundry detergents (Standard Concentrates) from in or around February 2009 (the Withhold Supply Provisions); and (b) s 45(2)(b)(i) of the TPA, by Colgate giving effect to the Withhold Supply Provisions by limiting the supply of Ultra Concentrates to Woolworths, Coles and Metcash until in or around February 2009 and Standard Concentrates to Woolworths, Coles and Metcash from in or around February 2009; (2) a pecuniary penalty in the amount of $6,000,000 for contraventions of: (a) s 45(2)(a)(ii) of the TPA by entering into an understanding (the Laundry Information Sharing Understanding) with Unilever containing a provision that they would share with each other confidential and commercially sensitive information relating to the price of their laundry detergent products (the Laundry Information Sharing Provision), which provision had the effect of controlling the price of laundry detergents supplied by Unilever in November 2008, within the meaning of s 45A(1) of the TPA, and is therefore deemed by s 45A of the TPA to have had the purpose, effect or likely effect of substantially lessening competition in the market in Australia for the wholesale supply of powdered and liquid laundry detergent products for domestic use (the laundry detergent market); and (b) s 45(2)(b)(ii) of the TPA by giving effect to the Laundry Information Sharing Provision, by sharing confidential and commercially sensitive information regarding the price of Colgate's laundry detergent products with Unilever in 2008. 2 I also ordered that Mr Ansell, who admitted to being directly or indirectly, knowingly concerned in or party to, and involved in, the contraventions admitted by Colgate referred to in sub para (2) above, be disqualified from managing corporations for a period of seven years from the date of the Court's order. 3 It is necessary to record that Colgate and Mr Ansell alone admitted the contraventions of the TPA described above for the purpose of these proceedings. No admissions have been made by the other entities identified above. Further, the orders I made reflected an agreed position of the parties as set out in a Statement of Agreed Facts and Admissions (SOAFA) and joint submissions on liability and relief.

The contravening conduct 4 Rather than repeating or attempting to summarise the comprehensive statements of fact and law in the SOAFA and joint submissions, I annex the documents to these reasons. They should be read as part of these reasons. They disclose the factual basis for the conclusion I reached that the orders proposed by agreement of the parties, and as made by me on 26 April 2016, were appropriate. 5 Colgate manufactures powdered and liquid laundry detergents for wholesale supply and marketing within Australia. During the relevant period, Mr Ansell held the position of "Customer Development Director" within Colgate. He was a senior manager responsible for the marketing, supply and pricing of Colgate's laundry products. Colgate, together with its competitors, Cussons and Unilever, controlled approximately 80% of the relevant laundry detergent market. 6 In or around early 2008, Colgate and its competitors decided to replace what were previously marketed as "standard-concentrate" laundry detergent products with "ultra-concentrate" laundry products. Ultra Concentrates allow less detergent to be used to achieve a comparable level of product performance. They also yield significant cost savings and gross margin improvements for Colgate as a consequence of reduced expenditure on ingredients, packaging, transport and other logistics. 7 Colgate considered that the proposed transition meant that there was a risk that: (1) but for a simultaneous industry wide transition of those laundry detergents that had not yet been replaced with Ultra Concentrates, consumers might be uncertain as to the value proposition of Ultra Concentrates relative to Standard Concentrates; (2) confronted by laundry products and packaging of different sizes, at parity or closely equivalent retail prices, consumers may prefer Standard Concentrates in larger packages on the mistaken basis that they represented greater value for money than Ultra Concentrates in smaller packages; and (3) Colgate would lose sales or market share if Colgate transitioned to Ultra Concentrates while other manufacturers continued to supply Standard Concentrates. 8 Through a series of meetings, telephone calls and correspondence between Colgate and its competitors throughout 2008, the Withhold Supply Understanding was reached to the effect that each manufacturer would participate in a coordinated transition from Standard Concentrates to Ultra Concentrates in February 2009 and that there would be a uniform in-store supermarket launch of Ultra Concentrates on the same date in March 2009. 9 From in or around early February 2009, in relation to the supply of laundry detergent products to Woolworths, Coles and Metcash: (1) Colgate introduced powder and liquid Ultra Concentrate products across each of its brands except Love n Care, and ceased the supply of its previous powder and liquid Standard Concentrate products, save in respect of the sell-down of certain products and the supply of a small number of Standard Concentrate SKUs (stock keeping units) to Metcash and Coles; (2) Unilever introduced powder Ultra Concentrate products across each of its brands, and ceased the supply of its previous powder Standard Concentrate products, save in respect of the sell-down of certain products; and (3) Cussons introduced powder Ultra Concentrate products across each of its brands except Down to Earth and some additional liquid Ultra Concentrate products, and ceased the supply of most of its previous powder and liquid Standard Concentrate products, save in respect of the sell-down of certain products and the supply of a small number of Standard Concentrate SKUs to Woolworths, Coles and Metcash. 10 Colgate admits that Withhold Supply Understanding contained provisions with the substantial purpose of limiting the supply of Ultra Concentrates until in or around February 2009, and of Standard Concentrates from that date, and that supply of these goods was limited as a result. 11 Further, in 2008, Colgate wished to increase the wholesale price of its laundry products. Mr Ansell, with the apparent but not actual authority of Colgate, communicated to representatives of Unilever confidential and commercially sensitive information about the price of Colgate's laundry detergents including Colgate's proposed price increases. Unilever increased the wholesale list prices of specific laundry detergent products supplied by it with effect from 10 November 2008. Unilever decided to implement these price increases after receiving information from Mr Ansell to the effect that Colgate was going to introduce its own price increases. Colgate increased the wholesale list prices of specific laundry detergent products supplied by it with effect from 17 November 2008. 12 Colgate admits that by reason of these circumstances, and in contravention of ss 45(2)(a)(ii) and 45(2)(b)(ii) of the TPA, it entered into the Laundry Information Sharing Understanding and the Laundry Information Sharing Provision which had the effect of controlling the price of laundry detergents supplied by Unilever in November 2008 and is thereby deemed by s 45A of the TPA to have had the purpose or effect, or been likely to have the effect, of substantially lessening competition in the laundry detergent market.

Discussion 13 In Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 326 ALR 476, the High Court held that the Building and Construction Industry Improvement Act 2005 (Cth), by providing for civil penalties, "implicitly assumes the application of the general practice and procedure regarding civil proceedings and eschews the application of criminal practice and procedure" (at [62]). As a result a court should be no "less willing to receive a submission as to the terms and quantum of penalty in a civil penalty proceeding than to receive a submission as to the terms and quantum of relief put up for approval by the court in any other kind of civil proceeding" (at [61]). In so deciding, French CJ, Kiefel, Bell, Nettle and Gordon JJ observed that: (1) "Civil penalty proceedings are civil proceedings and therefore an adversarial contest in which the issues and scope of possible relief are largely framed and limited as the parties may choose" (at [53]); (2) "…the purpose of a civil penalty… is primarily if not wholly protective in promoting the public interest in compliance" (at [55]); (3) "…in civil proceedings there is generally very considerable scope for the parties to agree on the facts and upon consequences. There is also very considerable scope for them to agree upon the appropriate remedy and for the court to be persuaded that it is an appropriate remedy…it is entirely consistent with the nature of civil proceedings for a court to make orders by consent and to approve a compromise of proceedings on terms proposed by the parties, provided the court is persuaded that what is proposed is appropriate" (at [57]); (4) "…there is an important public policy involved in promoting predictability of outcome in civil penalty proceedings and that the practice of receiving and, if appropriate, accepting agreed penalty submissions increases the predictability of outcome for regulators and wrongdoers" (at [46]); (5) "…the court is not bound by the figure suggested by the parties. The court asks "whether their proposal can be accepted as fixing an appropriate amount" and for that purpose the court must satisfy itself that the submitted penalty is appropriate" (at [48]); (6) "Subject to the court being sufficiently persuaded of the accuracy of the parties' agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and…highly desirable in practice for the court to accept the parties' proposal and therefore impose the proposed penalty" (at [59]); (7) "…the regulator in a civil penalty proceeding is not disinterested…That consideration, however, supports, rather than detracts from, the propriety of a court receiving joint (or separate) submissions as to facts and penalty and imposing the proposed penalty if persuaded that it is appropriate. …it is the function of the relevant regulator to regulate the industry in order to achieve compliance and, accordingly, it is to be expected that the regulator will be in a position to offer informed submissions as to the effects of contravention on the industry and the level of penalty necessary to achieve compliance" (at [60]); 14 The admitted facts sufficed to establish the existence of the contraventions. 15 Power to make the orders was not in doubt. 16 The appropriateness of the orders, to my mind, was manifest. 17 First, the joint submissions filed by the parties disclosed the careful consideration which the regulator, the Australian Competition and Consumer Commission (the ACCC), had given to the facts constituting the contraventions of the TPA, the consequences of those contraventions and the significance of those consequences, as well as the level of penalty necessary to achieve compliance with the relevant provisions having regard to the maximum penalties capable of being imposed, described as: a) in respect of the contraventions referred to in paragraphs 1 and 2 of the Proposed Consent Order [now order 6(a)], the maximum pecuniary penalty is AUD$51.2 million, being 10% of Colgate's turnover for the 12 months ending on 28 February 2009 of AUD$512.427 million; and b) in respect of the contraventions referred to in paragraphs 3 and 4 of the Proposed Consent Order [now order 6(b)], the maximum pecuniary penalty is AUD$50.2 million, being 10% of Colgate's turnover for the 12 months ending on 30 September 2008 of AUD$502.226 million. 18 Second, I accepted the joint submissions that once a court is satisfied that it has power to make the proposed orders and that those orders, including any pecuniary penalty, are appropriate, the desirability of doing so was reinforced in the present case by reason of the fact that the consenting parties are sophisticated, legally represented, and well able to understand and evaluate the desirability of the settlement. 19 Third, the joint submissions disclosed that the parties had identified and evaluated all relevant factors including those specified by s 76(1) of the TPA and as developed by judicial consideration. 20 Fourth, the evaluation disclosed in the joint submissions was demonstrably consistent with the principal object of a civil penalty, being to achieve compliance by way of deterrence, both specific and general. Of particular relevance to the need for deterrence in the present case is the agreed submission that Colgate obtained a number of benefits from the contravening conduct relating to the transition to Ultra Concentrates in that the unlawful conduct: a) reduced or eliminated the risk of Colgate's powdered Ultra Concentrate products, and to a lesser degree its liquid Ultra Concentrate products, competing with Standard Concentrate products supplied by either or both of the other two major suppliers; b) reduced or eliminated the risk of consumers preferring Cussons or Unilever's powdered Standard Concentrates or Cussons' liquid Standard Concentrates in larger packages, over Colgate's Ultra Concentrates on the mistaken belief that the larger Standard Concentrates ostensibly represented greater value for money than Colgate's Ultra Concentrates; c) reduced or eliminated the risk of loss of sales or market share or of not achieving optimal sales volume levels for Colgate's Ultra Concentrates as quickly if Unilever or Cussons continued to supply Standard Concentrates; and d) reduced expenditure on advertising to explain to consumers the value proposition of Ultra Concentrates compared to Standard Concentrates. 21 Further, by reason of the contravening conduct relating to the Laundry Information Sharing Provision, Colgate eliminated or reduced the risk to it of loss of sales or market share of its laundry detergent products to competitors, particularly Unilever. 22 Fifth, the joint submissions recognised the seriousness of the contraventions and their potential to harm markets and consumers of products within markets. While the benefits to Colgate could not be quantified, the contraventions meant that consumers paid higher prices for Unilever laundry detergent products and were deprived of having Standard Concentrates and Ultra Concentrates available at the same time. It is also likely that Colgate did gain financially by reason of the contraventions (albeit in an unquantifiable amount), although Mr Ansell did not. Significantly also, it was agreed that: In 2008, the approximate market shares by volume, within the laundry detergent industry were: Colgate 45%, Cussons 20.5%, and Unilever 19.3%. The approximate markets shares by value were: Colgate 39.7%; Unilever 24.7% and Cussons 19.3%. Put simply, Colgate had the largest market share on any measure within the relevant industry. 23 Sixth, the joint submissions gave due weight to other relevant considerations including Colgate's prior relevant conduct (it has not been found to have previously contravened provisions of Part IV of the TPA regarding cartel conduct, but has been found to have to have contravened the resale price maintenance provisions within Part IV of the TPA - see Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [2002] FCA 619; (2002) ATPR 41-880). They also recognised that from prior to and during 2008 and 2009, Colgate had an extensive trade practices and competition law compliance programme, and that Colgate's senior management were unaware of the nature and extent of Mr Ansell's communications with Mr Campbell in relation to the admitted contraventions. If Colgate's senior management were aware of those communications, they would have taken immediate disciplinary action against Mr Ansell, including recommending that his employment be terminated. Emphasis should also be given to the joint submissions which recorded that before the commencement of these proceedings, Colgate cooperated with the ACCC in its investigation of these matters, and continued to do so (including by agreeing to contribute $450,000 towards the ACCC's costs of the proceedings), as did Mr Ansell after the proceedings were commenced. In this regard, I accepted that: Colgate's and Mr Ansell's co-operation with the ACCC has saved the ACCC and the Court (and ultimately the community) the cost and burden of fully litigating these proceedings. 24 Seventh, and focusing on Mr Ansell, it was agreed that Mr Ansell has no prior relevant conduct. Further, his ability to secure and maintain work since the proceedings commenced in 2013 has been significantly adversely affected by the ACCC's investigation, these proceedings, and the publicity they have received. He is currently unemployed and at age 56 has little to no hope of working in the industry again, and if the proposed disqualification order was made, has no prospect of being engaged in a senior management role. 25 Taking into account these and all other matters in the SOAFA and joint submissions I accepted the position that was put in these terms: … each component penalty is appropriate in all the circumstances and that a total penalty of $18 million is likewise appropriate. The parties jointly submit that the Court should be satisfied of this because the proposed penalty as a total or as component parts are: a) within the permissible range of penalty in all the circumstances, albeit that, unassisted the Court may have selected a slightly different figure; and b) within what an independent assessment of the appropriate range of penalties would have resulted in. 26 I also accepted the propriety of not imposing a pecuniary penalty on Mr Ansell having regard to the impact, financial and otherwise, which the proceedings have had on him, his co-operation with the ACCC including agreement to contribute $75,000 towards the ACCC's costs of the proceedings, and the impact which will result from the disqualification order to which he consented. In respect of that order I accepted the joint submissions that: a) disqualification orders are designed to protect the public from the harmful use of the corporate structure or from use that is contrary to proper commercial standards; b) the banning order is designed to protect the public by seeking to safeguard the public interest in the transparency and accountability of companies and in the suitability of directors to hold office; c) protection of the public also envisages protection of individuals that deal with companies, including consumers, creditors, shareholders and investors; d) the banning order is protective against present and future misuse of the corporate structure; e) the order has a motive of personal deterrence, though it is not punitive; f) the objectives of general deterrence are also sought to be achieved; g) in assessing the fitness of an individual to manage a company, it is necessary that they have an understanding of the proper role of the company director and the duty of due diligence that is owed to the company; h) longer periods of disqualification are reserved for cases where contraventions have been of a serious nature such as those involving dishonesty; i) in assessing the appropriate length of prohibition, consideration has been given to the degree of seriousness of the contraventions, the propensity that the defendant may engage in similar conduct in the future and the likely harm that may be caused to the public; j) it is necessary to balance the personal hardship to the defendant against the public interest and the need for protection of the public from any repeat of the conduct; k) a mitigating factor in considering a period of disqualification is the likelihood of the defendant reforming; l) the eight criteria to govern the exercise of the court's powers of disqualification set out in Commissioner for Corporate Affairs (WA) v Ekamper (1987) 12 ACLR 519 have been influential. It was held that in making such an order it is necessary to assess: (i) character of the offenders; (ii) nature of the breaches; (iii) structure of the companies and the nature of their business; (iv) interests of shareholders, creditors and employees; (v) risks to others from the continuation of offenders as company directors; (vi) honesty and competence of offenders; (vii) hardship to offenders and their personal and commercial interests; and (viii) offenders' appreciation that future breaches could result in future proceedings; m) factors which lead to the imposition of the longest periods of disqualification (that is disqualification of 25 years or more) were: (i) large financial losses; (ii) high propensity that defendants may engage in similar activities or conduct; (iii) activities undertaken in fields in which there was potential to do great financial damage such as in management and financial consultancy; (iv) lack of contrition or remorse; (v) disregard to law and compliance with corporate regulations; (vi) dishonesty and intent to defraud; (vii) previous convictions and contraventions for similar activities; n) in cases where the period of disqualification ranged from 7-12 years, the factors evident and which lead to the conclusion that these cases were serious though not "worst cases", included: (i) serious incompetence and irresponsibility; (ii) substantial loss; (iii) defendants had engaged in deliberate courses of conduct to enrich themselves at others' expense, but with lesser degrees of dishonesty; (iv) continued, knowing and wilful contraventions of the law and disregard for legal obligations; (v) lack of contrition or acceptance of responsibility, but as against that, the prospect that the individual may reform; o) the factors leading to the shortest disqualifications, that is disqualifications for up to 3 years were: (i) although the defendants had personally gained from the conduct, they had endeavoured to repay or partially repay the amounts misappropriated; (ii) the defendants had no immediate or discernible future intention to hold a position as manager of a company; (iii) in ASIC v Donovan (1998) 28 ASCR 583 at 602, the respondent had expressed remorse and contrition, acted on advice of professionals and had not contested the proceedings. 27 As the joint submissions disclosed, the proposed banning order will prevent Mr Ansell from managing a corporation for seven years and, based on information provided by Mr Ansell, will effectively: a) have a financial effect extending beyond any penalty which could be awarded against Mr Ansell as it translates into an effective amount of up to $2.8 million, on the basis that Mr Ansell is unable to earn an income of up to $400,000 per year for seven years; b) prevent him from working in a management role in an industry he has worked in for nearly three decades; and c) take him through to retirement given he is currently 56 years of age, and require him to live on his life savings. 28 Otherwise, I accepted that it was appropriate to make the declarations and orders as the parties proposed, including that Colgate update its compliance and education/training program. As the joint submissions said, s 86C of the TPA empowers the Court to make such an order. The purpose of compliance orders and the matters that must be assessed by the Court in reviewing a proposed order and determining whether they are within power and appropriate were summarised by Gordon J in Australian Competition and Consumer Commission v Sontax Australia (1988) Pty Ltd [2011] FCA 1202 at [36] as follows: The purpose of a probation order is to ensure a company-wide awareness of responsibilities and obligations in relation to the contravening conduct or similar or related conduct: Australian Competition and Consumer Commission v Anglo Estates Pty Ltd [2005] FCA 20; (2005) ATPR 42-044 at [46]. There must be a nexus between the terms of the compliance program and the contravening conduct: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) ATPR 42-138 at [96]. The compliance program should set out the steps to be taken with sufficient clarity so that it is able to be performed. It should also be in the public interest that the respondent undertake the program: LG Electronics Australia [2006] FCA 1118 at [14]. 29 Finally, I should explain that proposed declarations 1 and 2 were deferred because they referred to Woolworths and Cussons which have not made admissions necessary to found those declarations. This approach, proposed by the parties, reflects the position previously adopted in various other decisions of this court (for example, Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18; (1999) 95 FCR 114 at [38]; Australian Competition and Consumer Commission v Kokos International Pty Ltd (No 2) [2008] FCA 5; (2008) ATPR 42-212 at [49]-[50], and Australian Competition and Consumer Commission v Australian Medical Association (Western Australian Branch) Inc [2001] FCA 1471; (2001) 114 FCR 91). I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

SCHEDULE OF PARTIES NSD 2510 of 2013 Respondents Fourth Respondent: WOOLWORTHS LIMITED ACN 000 014 675

ANNEXURE - STATEMENT OF AGREED FACTS AND ADMISSIONS Statement of Agreed Facts and Admissions by the Applicant and First and Third Respondents (21 March 2016) A. Introduction 1 This Statement of Agreed Facts and Admissions (SAFA) is made for the purposes of section 191 of the Evidence Act 1995 (Cth) (Evidence Act) jointly by the Applicant, the Australian Competition and Consumer Commission (ACCC), the First Respondent, Colgate-Palmolive Pty Ltd (Colgate), and the Third Respondent, Paul Ansell (Ansell). 2 This SAFA concerns conduct that took place in 2008 and early 2009 in relation to: (1) the transition by Colgate, PZ Cussons Australia Pty Ltd (Cussons), and Unilever Australia Limited (Unilever) from standard-concentrated laundry detergents (Standard Concentrates) to ultra-concentrated laundry detergents (Ultra Concentrates); and (2) the sharing between Colgate and Unilever of confidential and commercially sensitive information relating to the pricing of their laundry detergent products. 3 This document identifies the facts relevant to the contraventions admitted by Colgate and Mr Ansell for the purpose of these proceedings only. The facts agreed to, and the admissions made, are agreed to and made for the purpose of these proceedings only and do not constitute any admission outside the context of these proceedings. 4 For the purposes of these proceedings only, Colgate admits that: (1) in contravention of s 45(2)(a)(i) of the Trade Practices Act 1974 (Cth) (TPA), Colgate entered into an understanding with Cussons and Unilever (the Withhold Supply Understanding) containing provisions with the substantial purpose of limiting the supply to Woolworths Limited ("Woolworths"), Coles Group Pty Ltd ("Coles") and Metcash Limited (Metcash) of: (a) Ultra Concentrates until in or around February 2009; and (b) Standard Concentrates from in or around February 2009 (the Withhold Supply Provisions), being exclusionary provisions within the meaning of section 4D of the TPA; (2) in contravention of s 45(2)(b)(i) of the TPA, Colgate gave effect to the Withhold Supply Provisions by limiting the supply of: (a) Ultra Concentrates to Woolworths, Coles and Metcash until in or around February 2009; and (b) Standard Concentrates to Woolworths, Coles and Metcash from in or around February 2009; (3) in contravention of s 45(2)(a)(ii) of the TPA, Colgate entered into an understanding with Unilever (the Laundry Information Sharing Understanding) containing a provision that they would share with each other confidential and commercially sensitive information relating to the price of their laundry detergent products (the Laundry Information Sharing Provision), which provision had the effect of controlling the price of laundry detergents supplied by Unilever in November 2008, within the meaning of section 45A(1) of the TPA, and is therefore deemed by section 45A of the TPA to have had the purpose, effect or likely effect of substantially lessening competition in the market in Australia for the wholesale supply of powdered and liquid laundry detergent products for domestic use within the meaning of section 45(2) of the TPA; and (4) in contravention of section 45(2)(b)(ii) of the TPA, Colgate gave effect to the Laundry Information Sharing Provision by sharing confidential and commercially sensitive information regarding the price of Colgate's laundry detergent products with Unilever in 2008. 5 For the purposes of these proceedings only, Mr Ansell admits that he was directly or indirectly, knowingly concerned in or party to, and involved in, the contraventions admitted by Colgate referred to in paragraph 4 herein within the meaning of sections 76(1)(e) and 86E(1) of the TPA. 6 Colgate and Mr Ansell note that no admissions are made by either of them regarding: (1) the effect or likely effect upon competition of the Withhold Supply Understanding or any related conduct; (2) the purpose or actual effect or likely effect upon competition of the Laundry Information Sharing Understanding or any related conduct; and (3) any other contraventions of the TPA or conduct alleged by the ACCC in these proceedings other than as dealt with in this SAFA. 7 For the purposes of s 191(3)(a) of the Evidence Act, the parties have reached agreement as to the terms of relief to be sought from the Court to resolve the proceedings. The parties acknowledge that, under s 76 of the TPA, it is for the Court to determine whether the contraventions occurred and the quantum of any pecuniary penalties and other relief that should be ordered. 8 The ACCC, Colgate and Mr Ansell respectfully request that the Court make orders in the form set out in the attached draft orders which include the following: (1) declarations; (2) pecuniary penalties to be paid by Colgate; (3) an order that Colgate will implement an updated compliance program; (4) an order that Mr Ansell will be disqualified from managing any corporation for a period of 7 years; and (5) contributions to the ACCC's costs. B. Parties 9 The ACCC is a body corporate established by section 6A of the Competition and Consumer Act 2010 (Cth) (CCA), which was named the TPA prior to 1 January 2011, and is entitled to sue in its corporate name. 10 Colgate: (1) was and is an Australian proprietary company, limited by shares, registered in New South Wales; and (2) is able to be sued. 11 During the period 1 January 2008 to 31 December 2009, Colgate: (1) was carrying on business within Australia in the manufacture, wholesale supply and marketing of a diversified range of fast moving consumer goods, including laundry products; (2) manufactured powdered and liquid laundry detergents for wholesale supply within Australia; and (3) engaged in the wholesale supply and marketing within Australia of domestic powdered and liquid laundry detergent products under certain brand names. 12 Colgate no longer owns any laundry detergent brands in Australia, having sold its entire range of laundry detergents and pre-wash brands in Australia and New Zealand in 2015. 13 Mr Ansell: (1) was, between 1 January 2008 and 31 December 2009, Customer Development Director, Australia, also known as Sales Director, within Colgate; (2) in his role as Customer Development Director, was, at all material times, amongst other things: (a) one of the senior people at Colgate who together had responsibilities for decision-making in respect of marketing, supply and pricing of laundry products manufactured and supplied by Colgate; (b) had overall responsibility for liaising with Colgate's retailer customers, including Woolworths, Coles and Metcash, in respect of laundry products; (3) was, between 1 January 2008 and 31 December 2009, a member of Colgate's Management Committee; (4) in engaging in the conduct set out herein: (a) had the apparent authority of Colgate; and (b) as a result, was, and acted as, an agent of Colgate; and (c) is able to be sued. 14 For the avoidance of doubt, in this SAFA: (1) Woolworths does not include Big W; and (2) Coles does not include K-Mart. C. Facts relevant to liability 15 Throughout 2008 and 2009, consumers within Australia acquired powdered and liquid laundry detergents for domestic use in front-load and top-load washing machines, and for hand washing, to clean fabrics. 16 Throughout 2008 and 2009: (1) approximately two thirds of the annual volume of laundry detergents sold in Australia comprised powdered laundry detergents; and (2) approximately one third comprised liquid laundry detergents. 17 Throughout 2008 and 2009, Colgate, Cussons and Unilever were the largest wholesale suppliers of laundry detergents in Australia, with a combined market share, measured both by value and by volume, of approximately 80%. 18 Throughout 2008 and 2009, Colgate, Cussons and Unilever, along with other wholesale suppliers of laundry detergents in Australia, made laundry detergent products available for sale to: (1) retailers within Australia, including Woolworths and Coles; and (2) wholesalers within Australia, including Metcash. Other retailers or wholesalers to whom at least some suppliers made laundry detergents available included Big W, K-Mart, Franklins, Statewide Independent Wholesalers, API, Sigma, Symbion, Priceline and smaller independent retailers. From time to time, particular laundry detergent products were supplied on an exclusive basis to a particular retailer. 19 Throughout 2008 and 2009, most grocery product categories were reviewed within Woolworths and Coles, including the laundry detergent category. Most new products, including laundry detergent products, would ordinarily only be accepted for supply or introduced in stores by Woolworths and Coles at "category review" dates set by Woolworths and Coles. Category reviews for each major grocery category, including laundry detergents, were undertaken by Woolworths and Coles at least annually, but usually involved a "major" and a "minor" review, generally 6 months apart. 20 Throughout 2008 and 2009, Colgate, Cussons, Unilever and other laundry detergent suppliers (including Kao Australia Pty Ltd (Kao) and Amway of Australia Pty Ltd (Amway)) were members of Accord Australasia Limited (Accord), the national industry association for the Australasian hygiene, cosmetic and specialty products industry. 21 Mr Ansell was not a representative of Colgate at Accord and did not participate in any Accord meetings on behalf of Colgate. 22 Throughout 2008, wholesale suppliers of laundry detergents in Australia, including Colgate, Cussons and Unilever, were experiencing rising costs of manufacturing laundry detergents, including increasing costs of sodium tripolyphosphate (STPP), an input for the production of powdered laundry detergents. Further, those suppliers were also experiencing extensive competition on the price of laundry detergents supplied by them, particularly in relation to retail promotional prices. 23 Throughout 2008 and 2009, the majority: (1) by volume; (2) units sold; and (3) value, of the retail sales of laundry detergent products in Australia, including Colgate's, Cussons' and Unilever's laundry detergent products, were retail sales at promotional prices. Concentration of laundry detergents 24 References in this SAFA to concentration of laundry detergents are references to a process of reducing the volume and/or weight of a laundry detergent product but retaining the level of active ingredients in a way that maintains (or approximately maintains) product performance. 25 The term Standard Concentrates is used in this SAFA to refer to laundry detergents sold within Australia for domestic use during some or all of 2008 and 2009 that were: (1) in the case of powdered laundry detergents, standard concentrated high density detergents, sometimes referred to within Colgate as SCHDDs or super concentrates; and (2) in the case of liquid laundry detergents, heavy duty liquid laundry detergent products, sometimes referred to within Colgate as HDLs. 26 A list of particular Standard Concentrate products is set out in Annexure A to this SAFA. 27 The term Ultra Concentrates is used in this SAFA to refer to laundry detergents sold within Australia for domestic use, during some or all of 2008 and 2009, that were more highly concentrated than Standard Concentrates. 28 A list of particular Ultra Concentrate products is set out in Annexure B to this SAFA. 29 Prior to February 2009: (1) the majority of powdered and liquid laundry detergent products sold within Australia for domestic use comprised Standard Concentrates; and (2) a smaller proportion of laundry detergent products sold within Australia for domestic use were Ultra Concentrates. 30 In particular, prior to February 2009: (1) in respect of powdered laundry detergents: (a) Cussons only supplied powdered Standard Concentrates; (b) in the case of Unilever's supplies:

1. (A) the large majority were powdered Standard Concentrates;
2. (B) a small proportion of its powdered laundry detergents were less concentrated than Standard Concentrates. (c) in the case of Colgate's supplies:
3. (A) the large majority were powdered Standard Concentrates;
4. (B) a small proportion of its powdered laundry detergents were less concentrated than Standard Concentrates, sometimes referred to within Colgate as low density powders (LDPs). During 2008, these were not supplied to Woolworths or Coles for retail sale in supermarkets; and
5. (C) a very small proportion were powdered Ultra Concentrates. (2) in respect of liquid laundry detergents: (a) Colgate only supplied liquid Standard Concentrates; (b) Cussons only supplied liquid Standard Concentrates until around January 2008, when it commenced supply of liquid Ultra Concentrates in addition to continuing to supply liquid Standard Concentrates; and (c) Unilever only supplied liquid Standard Concentrates until around January 2008, when it commenced supplying liquid Ultra Concentrates and commenced ceasing supply of liquid Standard Concentrates. 31 The remaining Standard Concentrate products supplied by Colgate, Cussons and Unilever to Woolworths, Coles and Metcash for domestic use within Australia were, with minor exceptions, transitioned to Ultra Concentrate products commencing from in or around February 2009. Colgate and Cussons continued to supply a small number of Standard Concentrate products to Woolworths, Coles and Metcash after February 2009. 32 A list of particular Ultra Concentrate products supplied by Colgate, Cussons and Unilever from in or around February 2009 vis-à-vis the previous equivalent Standard Concentrate products is set out in Annexure C to this SAFA. The market for laundry detergent in Australia 33 Throughout 2008 and 2009: (1) powdered and liquid laundry detergents, for domestic use, were reasonably substitutable for, or in close competition with, each other; and (2) Standard Concentrate products and Ultra Concentrate products, for domestic use, were reasonably substitutable for, or in close competition with, each other. 34 There was, at all material times, within the meaning of section 4E of the TPA, a market in Australia for the wholesale supply of powdered and liquid laundry detergent products for domestic use (the laundry detergent market). 35 Colgate, Cussons and Unilever were: (1) at all material times, in competition with each other within the meaning of section 45(3) of the TPA; and (2) at all material times, competitive with each other within the meaning of section 4D of the TPA; within the laundry detergent market. Key personnel 36 Details of key personnel referred to in this SAFA are set out in Annexure H. Background to Colgate's introduction of Ultra Concentrates 37 By late 2007, suppliers of laundry detergents in some other countries, including the United States, had transitioned to supplying more highly concentrated laundry detergents. By at least mid-2007 Colgate understood that, in the United States as part of a sustainability initiative, Walmart (a retailer) had set a date beyond which it would no longer accept non-concentrated laundry detergents from manufacturers and that, as a result of this initiative, all major manufacturers of laundry detergents in the United States decided to transition their laundry detergents to more highly concentrated detergents nationally. 38 Colgate considered that a move by it to replace its Standard Concentrates with Ultra Concentrates, or a move by all suppliers and retailers of laundry detergents from Standard Concentrates to Ultra Concentrates across all laundry detergents brands sold within Woolworths, Coles and Metcash, would be likely to achieve the following benefits: (1) significant cost savings and gross margin improvements for Colgate (if it moved), as a consequence of reduced expenditure on ingredients, packaging, transport and other logistics; (2) Colgate's customers, including Woolworths, Coles and Metcash, would be: (a) likely to be able to achieve lower internal logistics and packaging costs, with resulting gross margin improvements; and (b) able to reduce the shelf-space required for laundry detergent products, thereby creating additional shelf space for laundry detergents or for other products; (3) benefits to consumers, including reduced weight and reduced environmental impact; and (4) environmental benefits, including through reductions in the use of materials for packaging and transport volumes, with attendant reductions in carbon emissions. 39 Colgate considered that: (1) but for a simultaneous industry wide transition of those laundry detergents that had not yet been replaced with Ultra Concentrates, there was a risk that consumers might be uncertain as to the value proposition of Ultra Concentrates relative to Standard Concentrates. However, Colgate also considered that this risk might be managed to some degree by Colgate by communications at store level and in advertising as to the value proposition of Colgate's yet to be introduced Ultra Concentrates relative to Standard Concentrates; (2) there was a risk that, confronted by laundry products and packaging of different sizes, at parity or closely equivalent retail prices, consumers may prefer Standard Concentrates in larger packages on the mistaken basis that they represented greater value for money than Ultra Concentrates in smaller packages. However, Colgate also considered that this risk might be managed to some degree by Colgate by communications at store level and in advertising as to the value proposition of Colgate's yet to be introduced Ultra Concentrates relative to Standard Concentrates; (3) there was a risk that Colgate's Ultra Concentrates may not have achieved as high sales if Standard Concentrates continued to be sold by its competitors due to the risks referred to in paragraphs 39(1) and 39(2) above. However, Colgate also considered that those risks might be managed to some degree by Colgate by communications at store level and in advertising as to the value proposition of its Ultra Concentrates relative to Standard Concentrates; and (4) there was a risk that if Colgate transitioned to Ultra Concentrates while other manufacturers continued to supply Standard Concentrates, Colgate would lose sales or market share but that it would still achieve increased profits and margins. 40 As of late 2007, Colgate's preference was to have an industry wide transition from Standard Concentrates to Ultra Concentrates, led by a retailer or industry body initiative. However, by at least mid-2008, Colgate would have moved, or was likely to have moved, to replace its Standard Concentrates to Ultra Concentrates in early 2009 in the absence of an industry wide transition or the Withhold Supply Understanding, although that transition may not have occurred at the same time as the other manufacturers'. 8 January 2008 meeting of Colgate (including Paul Ansell) and Woolworths 41 On 8 January 2008, a meeting was held that was attended by representatives of Colgate and Woolworths. 42 The meeting was attended by: (1) Paul Ansell, Sean Bone, Eric Jeanmaire, Nick Ryan, Adam Simmons and Simon Russell, as representatives of Colgate; and (2) James Aylen, Gordon Duncan and Stan Fuchs, as representatives of Woolworths. 43 Adam Simmons of Colgate prepared the Negotiating Tool Kit document COL.800.001.2597 prior to that meeting. 44 The following documents were presented by representatives of Colgate at that meeting: (1) COL.505.007.2566, being a document entitled 'Colgate-Palmolive ultra detergents update' (Ultra Detergents Update); and (2) COL.703.004.1540, being a document entitled 'Colgate-Palmolive ultra detergents update' which was provided to James Aylen, Gordon Duncan and Stan Fuchs of Woolworths at the meeting. 45 At the meeting, representatives of Colgate made statements orally and through slides to the effect of the following statements contained in the Ultra Detergents Update: (1) "Recommend full category transition in January 2009" (slide 32); (2) "Non-partisan category initiative" (slide 32); (3) "Historically, partial transitions have either 1. Required > 10 years to achieve critical mass, or 2. Failed outright" (slide 33); (4) "Both outcomes risk significant consumer confusion / rejection" (slide 33); (5) "Staggered transitions promote ASP [Average Selling Price] decline - permanent price reductions to encourage trial, eroding category value" (slide 33); (6) "Wal-Mart highlights a new paradigm for transition - All vendors to agree to transition by fixed date, Opportunity for industry sustainability initiative, Deliver significant environmental savings while reinvigorating category" (slide 33); (7) If the transition to Ultra Concentrates was staggered, rather than simultaneous, Colgate's estimate was that the value of: (a) the laundry detergent category in Woolworths would be an estimated $62 million lower in total over the calendar years 2008 to 2013 (slide 38); and (b) the "national detergent market value" would be an estimated $146 million lower in total over the calendar years 2008 to 2012 (slide 39); (8) "Parity or better performance versus current, at half the dose weight" (slide 42); (9) "Household Laundry Detergent Environmental PROPOSAL Overview Proposal to AFGC and/or ACCORD as enablers to an industry-wide, non-partisan sustainability initiative with agreement to transition to higher concentration formulas by end-January 2009 Scale and Scope It is intended for this agreement to cover all manufacturers of laundry detergent in Australia and New Zealand (recognising near-universal common supply) and all retailers and wholesalers of those detergents. This includes, but is not limited to: 1. Woolworths Pty Ltd; 2. Coles Group Pty Ltd; 3. Metcash Pty Ltd; 4. Unilever Australasia; 5. Colgate-Palmolive Pty Ltd; 6. PZ Cussons Australia Pty Ltd."" (slide 53); (10) "Enable the rapid understanding, acceptance and adoption of this new generation of detergents, with a common goal of facilitating the transition of the entire detergent market to this more environmentally sustainable format in 2009. - Extract from draft Colgate-Palmolive Sustainability Proposal" (slide 58); (11) "Propose all suppliers and retailers commit to full Ultra transition" (slide 60); (12) "Target January 2009 transition (allow 12 months for development)" (slide 60); (13) "Key success factors", "Full category transition to Ultra concentrates - Powders and liquids" and "All vendors to align on category initiative - Trade partner or industry body to lead; Agreed transition date" (slide 63); and (14) "Next Steps", including that: (a) "Woolworths: Confirm Jan 2009 transition plan", "Seek stakeholder feedback from other vendors" and "Confirm timeline viability"; and (b) "Colgate-Palmolive: Pursue legal approval for proposed industry sustainability initiative" (slide 64). 46 At the meeting with Colgate on 8 January 2008: (1) Woolworths' response was to the following effect: (a) "We will be very happy to support you, to stand up in a profession meeting and say that it sounds a very good way to do it, but not beyond this"; (b) "We are 100% behind you"; (c) "Next steps" included "Get the legal approvement to start the process particularly with industry approach"; and (d) "Your timing is good: aligned with the 2009 category review timing (january)"; (2) Woolworths agreed that Colgate would keep it informed of all steps in respect of the proposal; and (3) Woolworths agreed that the proposed industry wide transition is good for the suppliers and good for the retailers. 47 On 8 January 2008 at 8:22 pm, Eric Jeanmaire of Colgate sent the email COL.505.001.0935, attaching COL.505.001.0936 being a document entitled 'WW Detergent ultra meeting minutes 8 jan [sic] 08', to Paul Ansell and other Colgate recipients. 48 On 9 January 2008 at 12:38 pm, Paul Ansell of Colgate sent the email COL.501.006.9791, attaching a copy of the minutes, to Andrea Lagioia and Andrew Shepard of Colgate. In Mr Ansell's email, he said: "We met with Wow yesterday to excite them on CP Ultra launch in Jan 2009 To quote them "no need to sell concept, we are on same page" Sean Bone did a very good presentation They also shared what a great job the light bulb industry has done They also guided that we must have a PR response plan ready to answer potential media challenge The net issue is that they WILL NOT provide retailer leadership in the same way as Walmart US has done. (this is what we were trying to acheive [sic]) They will be supportive on our launch, they will share and encourage others ( if we wish) but they WILL NOT take punitive action against any supplier who does not convert to Ultras in 2009. They highlighted that Unilever and Cussons were showing leadership and taking risks in liquid currently and we can jump onto this now in liquids !" 8 January 2008 internal Unilever email 49 On 8 January 2008 at 11:46 am, Dana Buchanan of Unilever sent the email UAL.006.0005.0119, attaching UAL.006.0005.0124 being a document entitled 'NPD Brief_ Faster 8.01.08', to Kerry Lynch of Unilever, copied to other Unilever recipients including Geoffrey Bellingham and Michelle Katz. 10 March 2008 meeting of Colgate and Accord 50 A meeting was held on 10 March 2008 and attended by representatives of Colgate and Accord. 51 The meeting was attended by: (1) Sean Bone, Andrea Lagioia, Andrew Shepard and Sarah Whitaker of Colgate; (2) Craig Brock and Bronwyn Capanna of Accord. 52 Colgate prepared the following documents for the purposes of that meeting: (1) the attachments to the email COL.530.001.1176 from Sean Bone sent on 29 February 2008 at 1:36 pm: (a) COL.530.001.1177, being a document entitled 'Household Laundry Detergent Environmental Policy (HLDEP) PROPOSAL' (Colgate HLDEP Proposal); (b) COL.530.001.1181, being a document entitled 'Household Laundry Detergent Environmental Policy Proposal - avoiding TPA issues'; and (c) COL.530.001.1182, being a document entitled 'Ultra detergents sustainability initiative - Notes for discussion with Executive Director of ACCORD'; and (2) the attachments to the email COL.561.001.1433 from Sean Bone sent on 10 March 2008:

• communication is CRITICAL
• if Coles change to SC & WW don't it would be disastrous (implement in all accounts at the same time) …
• Stan's understanding is that the industry will move to SC in June/July 09 as a category hard change
• Colgate's will move to SC liquid in Jan 09 & powder in June 09
• Unit pricing impact - concerned about impact if the whole category does not move to SC at the same time" 16 June 2008 internal Colgate Mancom Meeting 89 On 16 June 2008, an internal Colgate management committee meeting was held, during which: (1) a version of a presentation titled "Ultra Implementation Recommendation June 2008 Final" was presented by Robert Wilson and Sean Bone (COL.503.002.2425); (2) the stated purpose of the meeting was to "Gain agreement to investigate a specific implementation option including completing full financial and cost analysis plus trade communication on launch plans"; (3) as part of that presentation, it: (a) was recognised that a "Con" accompanying a launch by Colgate of its Ultra Concentrate liquid and powder products in January 2009 is that it would be "before the ACCORD charter - Potential for sales loss if competitors don't move"; (b) recognised Woolworths' "Preference to go all in together in line with Category Review"; (c) recognised Coles was "not interested in doing another layout in April- have to be inline with Category Reviews"; (d) was recommended that the management committee decide that Colgate launch its Ultra Concentrate liquid and powder products in January 2009 "assuming validated implementation timeline"; and (4) that recommendation was adopted by the management committee. 4 July 2008 telephone calls between Paul Ansell (Colgate) and Peter Campbell (Unilever) 90 A number of telephone calls took place between Paul Ansell and Peter Campbell on 4 July 2008, with some of those calls made by Peter Campbell to Paul Ansell and some made by Paul Ansell to Peter Campbell. 91 In particular, in the course of 4 July 2008, several telephone calls were made by Paul Ansell to Peter Campbell and by Peter Campbell to Paul Ansell: (1) from Paul Ansell to Peter Campbell at 9:50 am for 1 minute 33 seconds; (2) from Peter Campbell to Paul Ansell at 1:21 pm for 15 seconds; (3) from Peter Campbell to Paul Ansell at 1:21 pm for 30 to 31 seconds; (4) from Paul Ansell to Peter Campbell at 1:26 pm for 24 seconds; (5) from Paul Ansell to Peter Campbell at 1:27 pm for 4 seconds; (6) from Peter Campbell to Paul Ansell at 1:27 pm for 9 seconds; (7) from Peter Campbell to Paul Ansell at 1:27 pm for 3 seconds; (8) from Peter Campbell to Paul Ansell at 1:28 pm for 2 minutes and 37 seconds to 2 minutes and 39 seconds; (9) from Paul Ansell to Peter Campbell at 1:31 for 2 minutes and 44 seconds; and (10) from Peter Campbell to Paul Ansell at 1:41 pm for 3 minutes and 1 second. 92 During those phone calls: (1) Mr Campbell said words to the effect of "Where are you guys at with the launch of concentrated powders next year? We are hearing from Woolworths that we are dragging the chain and that everyone else is ready to go at the end of January"; (2) Ansell said words to the effect of, "We will make the January date but I would personally prefer a February launch simply to get over the factory shutdown, clear old stock and avoid a clash with our annual conference."; and (3) Mr Campbell said words to the effect of, "Well, we'll have the conversation with them. Our preference is later rather than earlier and that is what we will try and push for." 93 Mr Campbell does not recall whether Mr Ansell said the word "personally" before "prefer a February launch", but even if he did, Mr Campbell would have taken that as Colgate's position on the issue at that point in time, not simply Mr Ansell's personal opinion. 7 July 2008 internal Unilever email 94 Peter Campbell of Unilever sent an email, UAL.011.0001.3195, to Sebastian Lazell, David McNeil, Jenifer Moss, Martin Nicholas and John Simpson of Unilever on 7 July 2008 at 11:17 am. 95 The email indicated that Peter Campbell had heard that Colgate was struggling to meet the first quarter of 2009 timeline, and would prefer an industry launch in the second quarter of 2009. 21 and 23 July 2008 internal Colgate SPMF meetings 96 On 21 July 2008, Colgate held an internal South Pacific Management Forum meeting, during which a presentation, COL.505.002.2807, was given by Robert Wilson titled "Ultra Launch Recommendation Australia". 97 The presentation contained the following statements under the heading "Recommendation": (1) "Plan for launch all Ultra (except Dynamo SCHDD) in January/February in line with current category reviews"; and (2) "Investigate opportunity of review in Q2 and either:

1. Unilever & Colgate both talking 500g & 1kg pack sizes
2. Both looking at around 60g scoop size
3. Both actively looking at ways to communicate/have 2x concentrate message on pack
4. WW (Stan) looking to bring range review forward to October 08 - does not expect final 'paperwork' etc but looking for mock-up samples/pricing direction etc - wants time to plan for the changeover so actual implementation timing likely not to change
5. Pick-slot management will be critical to changeover - suggest Matt McMillan attend WW Workshop now confirmed for 25th August" 7 August 2008 telephone calls by Peter Campbell (Unilever) to Paul Ansell (Colgate) 113 On 7 August 2008, Peter Campbell made two telephone calls to Paul Ansell at: (1) 7:59 am for 43 seconds; and (2) 4:42 pm for 22 minutes and 35 seconds. 114 During those discussions, Mr Campbell and Mr Ansell may have discussed the launch date for the transition to Ultra Concentrates. 8 August 2008 meeting of Colgate and Woolworths 115 A meeting was held on 8 August 2008 and attended by representatives of Colgate and Woolworths. 116 The meeting was attended by: (1) Nick Ryan of Colgate; and (2) Brad McCarry of Woolworths. 117 The matters discussed at that meeting included, but were not necessarily limited to, the matters recorded in document COL.505.002.6190 being a document entitled 'Colgate / Woolworths Meeting - Nick Ryan / Brad McCarry 8th August, 2008'. 118 That document stated: (1) "Brad was keen to know where the industry initiative approach was at with ACCC / Accord etc. I responded that it appears that this is going slow and that they need their own plan to make it work. I also said that we are the best placed supplier to make it work with them given our size & brands"; (2) "Brad made the point that Woolworths had the most to lose from a bad transition & everyone flooding to Mass & discounter channel [sic] for better value (per Kg etc). He did accept my counter point that it was in fact Colgate that had the most to lose, so that we had a common interest in success!"; and (3) "Woolworths have meet [sic] with Unilever (& us), and are meeting with Cussons next week. After that they will form a working group that Brad is already coordinating." 11 August 2008 meeting of Colgate (including Paul Ansell) and Woolworths 119 A meeting was held on 11 August 2008 and was attended by: (1) Paul Ansell, Tina Stoian and Nick Ryan, as representatives of Colgate; and (2) Naum Onikul and James Aylen, as representatives of Woolworths. 120 The slideshow presentation COL.529.001.0487 entitled 'Business Update 11 August 2008' was presented by Colgate at that meeting (11 August 2008 Business Update Presentation). 121 The 11 August 2008 Business Update Presentation contains a slide which states "Packaging material savings est 25% reduction" and "Massive supply chain efficiencies est 37%+" and Colgate made a statement to Woolworths to that effect. 122 Document COL.101.002.0001 contains handwritten notes made by Paul Ansell during the meeting. 123 Mr Ansell made the following handwritten notes of the conversation: "1 March

• Other suppliers
• Resources
• OOS [i.e. "out of stocks"]
• Holidays" 124 Document COL.516.004.3040 is Colgate's internal draft minutes of the meeting with Paul Ansell's comments highlighted in red. 125 That document states: Ultra Conversion for detergent Category - major opportunity requiring major resource focus by Woolworths & Colgate (& all suppliers) 126 Mr Ansell's comments to that document included "I would not reference other suppliers". 127 Document COL.516.004.3039 is an email sent by Paul Ansell to Nick Ryan and others at Colgate sent on 12 August 2008 at 5.47 pm, which attached COL.516.004.3040. 128 The matters discussed at that meeting included, but were not necessarily limited to, the matters recorded in document COL.516.004.2610, being a document referred to as "a few brief minutes of the meeting" and which were attached to the email COL.516.004.2607 from Nick Ryan to Naum Onikul and James Aylen, and copied to Paul Ansell and Tina Stoian, sent on 12 August 2008 at 6.28 pm. 129 Those minutes state in relation to "Ultra Conversion for detergent Category": (1) "Woolworths to assess pushing back the review by 1 month to avoid risk to sales during peak sales period of category & historical holiday period of many merchandisers."; and (2) "Ultra seen as a key / one off opportunity to change some of the category dynamics." 11 August 2008 telephone call by Paul Ansell (Colgate) to Peter Campbell (Unilever) 130 Paul Ansell called Peter Campbell on 11 August 2008 at 12.46 pm for 2 minutes and 28 seconds. 131 Paul Ansell made that telephone call to Peter Campbell whilst he was driving from the meeting that he attended with Naum Onikul and James Aylen of Woolworths at Woolworths' offices on 11 August 2008. 132 Paul Ansell says it is possible that he told Peter Campbell about the discussion he had just had with Woolworths. 11 August 2008 email from Woolworths 133 On 11 August 2008 at 3.40 pm, Stan Fuchs of Woolworths sent the email, LDS.005.001.0074 to "undisclosed recipients". 134 Stan Fuchs believes that he sent this email to all of the vendors who supplied Woolworths with laundry products. 135 The email was received by, at least, representatives of: (1) Colgate; (2) Cussons; (3) Unilever; (4) Kao; and (5) FGB Natural Products. 136 Specifically, the email was received by, at least: (1) Simon Russell of Colgate; (2) Ben Appleby of Cussons; (3) Geoff Bellingham of Unilever; (4) Greg Collins of Kao; and (5) Tegan Abbott and/or Eileen Bond of FGB Natural Products. 137 The email stated: "G'day All, This is a generic e-mail being sent to all of the laundry vendors. It is my understanding that all vendors will be changing over to super / ultra concentrates in line with our next laundry review (in store 11/02/2009) If this is not the case please can you let me know as soon as possible in order for us to plan this changeover project? Please can you also let me know if you will be selling regular and concentrate laundry powders into any other channels? Attached, please find a spreadsheet for you to enter all the new dimensions as we will need to do a few POG mock ups" 138 The email attached LDS.005.001.0074, being a spreadsheet entitled "Ultra Detergent Pack Dimensions.xls". 11 August 2008 internal Colgate email 139 At 3.54 pm on 11 August 2008, by email COL.532.003.9053, Simon Russell of Colgate forwarded a copy of the email from Stan Fuchs at 3.40pm that day and its attached spreadsheet to Mark Martin and Nick Ryan of Colgate, and stated: "The ball is rolling". 12 August 2008 email from Woolworths 140 On 12 August 2008, Stan Fuchs of Woolworths sent the email LDS.006.001.0258. 141 The email was sent by Stan Fuchs of Woolworths to "undisclosed recipients". 142 The email was received by, at least, representatives of: (1) Colgate; and (2) Cussons. 143 Specifically, the email was received by, at least: (1) Simon Russell of Colgate; and (2) Ben Appleby of Cussons. 18 August 2008 internal Colgate emails 144 On 18 August 2008, Paul Ansell, Nick Ryan and Simon Russell of Colgate engaged in the email correspondence COL.800.001.7965 regarding Woolworths' position on the launch date for ultra concentrated laundry detergents. 145 Specifically, at 9.13am, Paul Ansell emailed Nick Ryan saying: "Can we confirm we are oK [sic] for 1 March They were to respond on Friday Coles is OK for 1March [sic] and we believe competition prefers 1 March Do you want me to call James ? Need an answer this morning But we need March" 146 At 10.28 am, Nick Ryan emailed Simon Russell saying "can you get an update from Stan & press him on if they have discussed with James?" 18 August 2008 conversation between Stan Fuchs (Woolworths) and Simon Russell (Colgate) at Woolworths' Perishables Conference in Brisbane 147 On 18 August 2008, Woolworths' Perishables Conference was being held in Brisbane. 148 Stan Fuchs and Simon Russell had a conversation. 149 On 18 August 2008 at 1.48pm, Simon Russell sent an email, LDS.006.001.0208, to Nick Ryan. 21 August 2008 telephone conversation between Peter Campbell (Unilever) and Bill Courtier (Cussons) 150 Peter Campbell of Unilever called Bill Courtier of Cussons on 21 August 2008 at 7:06 pm for 7 minutes and 36 seconds. 25 August 2008 conversation between Nick Ryan (Colgate) and Brad McCarry (Woolworths) 151 On 25 August 2008, Nick Ryan had a telephone conversation with Brad McCarry and sent an email to Paul Ansell and others at Colgate on 25 August 2008 at 5:10 pm (COL.800.001.1330). In the email, he said: "[Brad] said he had spoken to James, his recommendation to James was to stick to planned dates, but he also said to me he with [sic] go with James recommendation. Earlier in the conversation he did make the comment that if people are not ready, he said it was just bad luck for them (I mentioned that we had been told by Stan Unilever may miss a couple of products). I said shipping later was about missing a key period & lowering risk. Brad is still working out how to do this transition in Woolworths, they are meeting Cussons today (?), Brad I think is catching up with Cussons later this week, his head is currently at transition some states earlier than others to manage the SOH clearance risk / expense for Woolworths (& Colgate). So on the 1st March ship he said he was thinking WA, SA & TAS 16th Feb & then 2 weeks after that QLD & VIC & then NSW the week after that. He really is just looking at idea's [sic] at present. I mentioned that we to [sic] had considered a state by state transition but he would need to consider what he thought about competitors having slightly different transitions, which I played down to him." … "TO CLARIFY ON SHIP DATE - given the conversation I have had w/c 16/2 in WA & SA is what Woolworths are saying today & then eastern seaboard 2nd March. This is without talking to some competitors." 152 Paul Ansell forwarded that email to Paul Rubenach, Andrew Shepard and Tina Stoian on 25 August 2008 at 6:32 pm, saying "As discussed, positive news" (COL.800.001.1330). 25 August 2008 meeting of Cussons and Woolworths 153 A meeting was held on 25 August 2008 and attended by representatives of Cussons and Woolworths. 154 The meeting was attended by representatives of Cussons including, but not necessarily limited to, Kym Gill and Scott Wilson of Cussons. 155 The document PZC.009.001.0202, being an email from Kym Gill sent on 26 August 2008, attached PZC.009.001.0203, being notes of the discussion. 25 August 2008 email at 4:37 pm from Colgate to Woolworths 156 On 25 August 2008 at 4:37 pm, Nick Ryan of Colgate sent an email to Brad McCarry of Woolworths, which is the first email in the chain COL.504.001.1195. Mr Ryan's email referred to "your [Woolworths'] email of 12 August which was sent from Stan [Fuchs] to Simon Russell of Colgate-Palmolive, and other undisclosed recipients." At 4:38 pm, Nick Ryan forwarded a copy of that email to Paul Ansell, Lisa Mather and Simon Russell of Colgate, being the second email in the chain COL.504.001.1195. 26 August 2008 email at 3:58 pm from Unilever to Woolworths 157 On 26 August 2008 at 3:58 pm, Geoff Bellingham of Unilever sent the email UAL.006.0001.3562 to Stan Fuchs of Woolworths. 158 The email attached UAL.006.0001.3564, being a spreadsheet entitled "Ultra Detergent Pack Dimensions - Unilever". 26 August 2008 email at 4:59 pm from Unilever to Woolworths 159 On 26 August 2008 at 4:59 pm, Geoff Bellingham of Unilever sent the email UAL.017.0001.0735 to Stan Fuchs of Woolworths. 27 August 2008 discussion between Unilever and Woolworths 160 On 28 August 2008 at 9.51 am, Geoff Bellingham of Unilever sent the email UAL.006.0001.3655 with the subject heading "WW's Powder Concentration Update" to Unilever recipients, copied to Ken Basha. 29 August 2008 email from Coles to Colgate 161 On 29 August 2008, Paul Schadel (Coles) had a conversation with Emma Grant (Colgate) in which he "confirmed that Coles will align to the March date for Ultra detergents", as recorded in Ms Grant's email to various Colgate recipients at 11:00 am that day (COL.525.002.3441). 29 August 2008 internal Colgate (including Paul Ansell) email 162 Simon Pearce of Colgate sent an email, COL.505.002.7973, to various Colgate recipients on 29 August 2008 at 10:09 am. 163 One of the lines in the email stated that "We now have final confirmation from both Coles & W/W's that they will accept a shipment later than 26 Jan. The new instore date for Ultras is 2 March… The Instore [sic] launch of Ultras in all states is Mon 2 Mar". Understanding as to transition date 164 By the end of August 2008, Colgate's understanding was that: (1) Woolworths and Coles would each accept shipments of Ultra Concentrates later than 26 January 2009 and that the in-store launch dates of Ultra Concentrates would be 2 March 2009; (2) Woolworths' and Coles' shipment and in-store launch dates for Ultra Concentrates would also apply in respect of Unilever and Cussons; and (3) Colgate, Cussons and Unilever would all be changing over their remaining Standard Concentrates to Ultra Concentrates at around the same date so as to achieve a transition in early 2009 with an in-store launch of 2 March 2009. 29 September 2008 meeting between representatives of Accord and ACCC Commissioner 165 A meeting was held on 29 September 2008 and attended by representatives of Accord and the ACCC. 166 The meeting was attended by: (1) Bronwyn Capanna and Craig Brock of Accord; (2) Bernard Evans of Middletons (Accord's lawyers); and (3) Commissioner John Martin of the ACCC. 167 On 3 October 2008 at 9:43 am, Bernard Evans of Middletons (Accord's lawyers) sent the email ACR.001.001.0206 to Bronwyn Capanna and Craig Brock of Accord. The email attached Mr Evans' file note of the meeting on 29 September 2008, being document ACR.001.001.0207. 168 On 12 November 2008 at 6:59 pm, Bronwyn Capanna of Accord sent an email to Paul Rubenach and Lisa Mather of Colgate, Mary Weir and Jennifer Moss of Unilever, and Mark Davey of Cussons, copied to others. A copy of the email is contained in COL.504.001.2366. 10 October 2008 meeting of Accord, Colgate, Cussons and Unilever 169 A meeting was held on 10 October 2008 and attended by: (1) Bronwyn Capanna and Craig Brock of Accord; (2) Paul Rubenach and Lisa Mather of Colgate; (3) Mark Davey of Cussons; (4) Jennifer Moss of Unilever; and (5) Bernard Evans and Erin McGushin of Middletons. 170 During the meeting, the attendees had the following discussion:

1. The most recent statement of claim filed by the ACCC is the Consolidated Statement of Claim dated 21 March 2014.
2. The defence filed by Colgate is dated 22 April 2014 and the defence filed by Ansell is dated 22 April 2014.
3. Defined terms used in these submissions have the same meaning as those terms have in the SAFA.
4. CFMEU at [1], [60]. [68] and [79]
5. CFMEU at [60]
6. CFMEU at [64]
7. CFMEU at [61]
8. CFMEU at [32]
9. (1996) 71 FCR 285 at 291
10. (1999) 161 ALR 79 at 86
11. ACCC v Virgin Mobile Australia Pty Ltd (No 2) [2002] FCA 1548 at [1] (French J); ACCC v REIWA at 86-87.
12. (2001) ATPR 41-840 at [24] per Lee J.
13. ACCC v REIWA at 87 [20]-[21] (French J); ACCC v Econovite Pty Ltd (2003) ATPR 41-959 at [11] (French J); ACCC v Woolworths (South Australia) Pty Ltd (Trading as Mac's Liquor) (2003) 198 ALR 417 at 424 [21] (Mansfield J)
14. Thomson Australia Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 164 (Gibbs CJ, Stephen, Mason and Wilson JJ)
15. Forster at 437-8 per Gibbs J.
16. ACCC v MSY Technology Pty Ltd (2012) 201 FCR 378 at [35].
17. See the cases referred to at ACCC v CFMEU [2007] ATPR 42-140 at [6] per Nicholson J.
18. ACCC v MSY Technology Pty Ltd (2012) 201 FCR 378; ACCC v Sampson [2011] FCA 1165 at [13]-[18] per Tracey J.
19. ACCC v CFMEU [2007] ATPR 42-140 at [6] per Nicholson J.
20. BMW v ACCC [2004] 207 ALR 452 at [35] quoting the High Court in Rural Press Ltd v ACCC (2003) 216 CLR 53 at 91.
21. Section 191 of the Evidence Act 1995 (Cth).
22. ACCC v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665 at 680-1, [57]-[59] (Kiefel J), endorsed by the Full Court in ACCC v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513 at [92]; Hadgkiss v Aldin (No 2) [2007] 169 IR 76 at 81, [21]-[22] (Gilmour J); Secretary, Department of Health & Aging v Pagasa Australia Pty Ltd [2008] FCA 1545 at [75]-[78].
23. See for example, Ponzio v B & P Caeli Constructions Pty Ltd (2007) 158 FCR 542 (where the Full Federal Court made declarations on the basis of facts established by a statement of agreed facts); Hadgkiss v Aldin (No 2) [2007] 169 IR 76 at 79, [10]; Secretary, Department of Health & Aging v Pagasa Australia Pty Ltd [2008] FCA 1545 at [78]-[79]; ACCC v Skins Compression Garments Pty Ltd [2009] FCA 710, [13]; ACCC v Cosic Holdings Pty Ltd [2009] ATPR 42-304, [49]-[52].
24. Specifically, ss 76(1)(a)(i) and 76(1)(e) TPA.
25. Other than s 44ZZRF or 44ZZRG TPA.
26. Section 76(3) TPA.
27. Being the factors identified and explained by French J (as a member of the Federal Court) in relation to the Trade Practices Act in TPC v CSR Ltd (1991) ATPR 41-076 at 52,152-52,153. These have been approved and expanded upon by the Full Federal Court: NW Frozen Foods Pty Ltd v ACCC (1996) 71 FCR 285 at 292-294 (Burchett and Kiefel JJ; Carr J agreeing), J McPhee & Son (Aust) Pty Ltd v ACCC (2000) 172 ALR 532 at [150] et seq (Black CJ, Goldberg and Lee JJ) and ACCC v Dataline.Net.au (2007) 161 FCR 513 at [58] (Moore, Dowsett and Greenwood JJ).