The Federal Court yesterday heard a statement of agreed facts in which billionaire Richard Pratt, and his company Visy, admitted to breaching provisions of the Trade Practices Act. Visy and the ACCC agreed for Visy to pay a fine of $36 million (as well as legal costs in the vicinity of $10 to $20 million). Visy CEO Harry Debney would notionally pay $1.5 million (covered by Visy) and former executive, Rod Carroll, pay $500,000.
Counsel for the ACCC, Peter Jopling QC, noted that “given Pratt’s role as owner and chairman, the significance of him giving his imprimatur to the overarching understanding is very great [and that] the contraventions were clearly deliberate and were committed in the consciousness of illegality.”
However, while Visy has agreed to plead guilty – its actions, and the actions of Pratt don’t exactly indicate a great deal of contrition. In an interview with The Australian, Pratt noted that “Visy’s culture has been to grow volume, cut prices and keep re-investing in the business. If anybody had an incentive to fix prices it was Amcor, not Visy. If there was an instigator, it was Amcor, not Visy.”
In a subsequent letter to Visy clients, Pratt claimed that “our actions were motivated by a desire to take advantage of our competitors.” Unlike other cartels, whose motivation is aimed at taking advantage of their customers.
Yesterday, leaving court, Pratt read a statement claiming that “I know a lot more now than I knew then, but I sincerely regret what happened and I accept ultimate responsibility.”
One would wonders why, if Pratt and Visy didn’t know what they were doing was wrong – would Visy and Amcor executives go to such great lengths to hide their meetings? Generally, when someone doesn’t know they are doing the wrong thing, they don’t bother with clandestine meetings in parks, secret trysts at Richmond pubs and prepaid SIM cards to hide any evidence of their conversation. (Not forgetting that Visy has already been fined $500,000 for Trade Practices infringements before so it would know a thing or two about the law).
Earlier, Visy silk, Jonathan Beach, had told the court that “[the price] increases would have taken place in any event and if that’s right we don’t accept there was any loss incurred because of the collusion.” If that preposterous argument is correct, Visy and Amcor are the world’s most incompetent price fixers. While Australia’s third richest man may be accused of being many things, incompetence certainly is not one of them.
In Visy’s defense, it is having to maintain a delicate balancing act – showing enough remorse in the ACCC matter so that the fine is agreed to by the court, but not showing too much remorse such that it makes defending the upcoming class action impossible.
Visy’s actions fit neatly into an observation made by Justice Spiegelman in the New South Wales Court of Appeal where his Honour noted that:
A [guilty] plea may be entered as an acceptance of the inevitable or in order to obtain such advantage as may be offered in the circumstances. In such a case the [guilty] plea does not indicate genuine remorse or contrition…Much greater weight may be accorded to the conduct and statements of the accused over a period of time, which confirm a position of genuine and deeply felt contrition. When such contrition is taken into account by a sentencing judge, then the diminution of sentence is given for the contrition, not for the plea of guilty.
Visy and Pratt’s statements indicate the only remorse felt is the remorse over being dobbed in. It will be interesting to see whether Justice Heerey takes this into account in determining the penalty to be applied.