BlueScope Steel Limited v Australian Competition and Consumer Commission

This appeal arose from ACCC proceedings about pricing conduct in the Australian flat steel market. The Full Federal Court said the primary judge had found proven attempts to induce multiple counterparties to arrive at understandings containing cartel provisions. Those counterparties were seven distributors of flat steel products, one joint venture importer of flat steel products and one overseas flat steel mill.

The commercial setting mattered. BlueScope was described as the dominant player in the Australian flat steel market and the only domestic manufacturer of flat steel products during the relevant period. The court said the market had been under pressure after the global financial crisis. Demand had fallen, overseas supply had increased and prices were under strain.

Mr Jason Thomas Ellis joined BlueScope's CIPA division in September 2013 as General Manager of Sales and Marketing, at a time when BlueScope wanted to reverse a decline in market position.

The primary judge found that, from early September 2013 until at least April 2014, BlueScope and Mr Ellis sought to implement a strategy to raise prices in the market. The strategy was referred to as the benchmarking strategy or recommended resale price strategy. In broad terms, CIPA price lists were promoted to distributors as a base or floor for their own prices.

The court also referred to an overseas mill strategy, where those same price lists were promoted to an overseas mill as a reference point in its pricing, with the intention that this would increase prices in Australia.

The court explained that the Australian flat steel market operated at two functional levels: manufacturing or imports, and distribution. BlueScope and related entities operated at both levels. BlueScope manufactured flat steel products and sold them to distributors, while also selling directly to end-users through related channels. It faced competition from import traders and foreign manufacturers at one level, and from distributors at another.

That structure is commercially significant because competition law risk often increases where a business is dealing with parties who compete with each other, or where a supplier also has interests downstream. The court said distributors bought flat steel products to on-sell to end-users, often offering wider product ranges, shorter delivery times, lower minimum volumes and processing services.

BlueScope also had internal and related distribution channels, including BlueScope Distribution, and related entities such as New Zealand Steel and New Zealand Steel (Australia) Pty Ltd.

The conduct in issue was not described as a simple unilateral announcement of BlueScope's own prices. The primary findings under challenge were that BlueScope and Mr Ellis sought to induce understandings under which distributors would use CIPA's distribution market price lists as a base or floor price for their own supply of flat steel products.

The court quoted the primary judge's conclusion that the understanding sought to be induced was a consensus or meeting of minds for distributors to use those list prices as a base or floor price. The primary judge also found that strict adherence was not required. Rather, the understanding sought was a more general adherence to the principle that distribution prices should be increased to the level of CIPA's price lists by way of a floor.

The overseas mill strategy was related but distinct. The court said the same price lists were promoted to an overseas mill for use as a reference point in its pricing, with the intention that this would increase prices. The primary judge also found an attempt to induce an understanding involving an import trader. So the case was about attempts to shape market pricing behaviour across several counterparties, not just one bilateral conversation.

The central legal issue was how far a person must go before they can be said to have attempted to induce a contravention of the cartel provisions. The appeal was brought from findings that BlueScope and Mr Ellis had attempted to induce counterparties to contravene s 44ZZRJ of the Competition and Consumer Act 2010 (Cth) by arriving at understandings containing cartel provisions.

The court noted that s 76(1)(d) allows the Court to order a pecuniary penalty where a person has attempted to induce a person to contravene a provision in Part IV, including s 44ZZRJ.

The appellants argued that an understanding must involve an assurance, undertaking or commitment by at least one party to take future action. They said that this requirement should also extend to an attempt to induce such an understanding. On that approach, they argued that because the primary judge found the ACCC did not need to prove that BlueScope or Mr Ellis went so far as to seek an assurance, undertaking or commitment, the primary judge had erred.

The court also recorded that the appellants relied on what they said was positive evidence that neither BlueScope nor Mr Ellis sought commitments from the counterparties as to the prices they would charge, that the counterparties did not give any such commitments, and that no quid pro quo was offered. They argued that the absence of those features was fatal to the ACCC case.

The appeal therefore squarely raised the distinction between a substantive cartel contravention and an attempt to induce one. The court expressly said it was important to keep that distinction steadily in mind. That is a practical point for businesses. A completed arrangement is not the only source of risk. The law can also focus on conduct aimed at bringing a prohibited understanding about.

Other issues on appeal included whether the primary judge had identified the correct intention, whether the conduct relied on was based on things that had already occurred, whether the conduct was capable of assent, whether it was sufficiently proximate to an attempt to induce an understanding, whether the ACCC was precluded by s 77(2) from seeking a pecuniary penalty in respect of one contravention, and whether the Court had power to make a non-indemnification order.

The Full Federal Court dismissed both appeals. The formal orders recorded that BlueScope's appeal was dismissed and that it was to pay the ACCC's costs, as agreed or taxed. Mr Ellis' appeal was also dismissed, with a corresponding costs order in favour of the ACCC. The catchwords likewise state that the appeals were dismissed.

From the reasons and catchwords, the court rejected the appellants' challenge to the primary judge's approach to the elements of an understanding, the elements of an attempt to induce, the relevant intention, inducement, capability of assent and proximity. The court's table of contents and introductory discussion show that it considered these issues in detail, including the appellants' argument that commitments were necessary and their argument that the conduct relied on had already occurred.

The result was that the primary findings remained in place that BlueScope and Mr Ellis had attempted to induce seven distributors, an import trader and an overseas steel mill to arrive at understandings containing cartel provisions. The court also dealt with penalty-related issues, including a limitation argument under s 77(2) and the question of a non-indemnification order, but the overall disposition remained that both appeals failed.

For a business reader, the practical significance of the outcome is not just that the ACCC succeeded. It is that the Full Federal Court upheld findings based on attempted inducement. The absence of a signed agreement, express promise or obvious quid pro quo did not produce a successful appeal. That is the key compliance message from the case.

This case should be read carefully by any business that sells through distributors, resellers, import channels or related entities. Commercial pressure to stop discounting, restore margins or create a more orderly market is common, especially in industries facing oversupply or falling demand. But this decision shows that a strategy aimed at getting market participants to align around a common benchmark, floor or increase can create serious competition law risk.

The practical point is that risk may arise before anyone reaches a final arrangement. The court highlighted the distinction between a substantive contravention and an attempt to induce one. Businesses sometimes assume they are safe if no one signs anything, no one expressly agrees, and no one gives a binding commitment. This appeal shows that assumption can be dangerous.

Pricing communications are especially sensitive where the counterparties compete with each other in supplying the goods, or where your business competes with them at another level of the market. A supplier can lawfully set its own prices, but trying to get others to use those prices as a floor or market reference point is a different proposition. The legal character of the conduct will depend on the surrounding facts, the market relationships, the purpose of the communications and how the proposal is put.

The case also shows that individual executives can be exposed alongside the company. One appeal was brought by BlueScope and the other by Mr Ellis personally. Senior managers involved in pricing strategy, channel management and communications with distributors or suppliers should therefore be trained to recognise cartel risk and to escalate concerns early.

The court's contents and introductory summary show that the appeal involved a detailed factual record.

The reasons refer to matters such as managerial investment in the recommended resale price strategy, a meeting at Melbourne Airport, promotion of the strategy to a large number of distributors, statements at a Wright Steel dinner, an email from Mr Unicomb, creation and distribution of a December 2013 benchmark spreadsheet, conversations between CIPA representatives and distributors, complaints that distributors were not pricing in accordance with CIPA price lists, internal reporting, and a meeting in Taiwan with representatives of Yieh Phui.

For business owners, the lesson is that cartel cases are often built from ordinary commercial documents and conversations. A spreadsheet, presentation, email, dinner discussion or internal report can become important if it shows a strategy of trying to get others to align their pricing. The risk is not limited to formal contracts or board resolutions.

That does not mean every pricing discussion is unlawful. But it does mean businesses should be disciplined about how they discuss market pricing, discounting, channel margins and competitor behaviour. If a document or conversation would read as an attempt to get others to move their prices in line with yours, it may create problems later.

The Full Federal Court delivered judgment on 29 August 2025. The appeal was from earlier Federal Court decisions on liability and penalty: ACCC v BlueScope Steel Limited (No 5) [2022] FCA 1475 and ACCC v BlueScope Steel Limited (No 6) [2023] FCA 1029. The hearing dates recorded in the reasons were 26 to 29 August 2024.

The conduct found at first instance and discussed on appeal occurred from early September 2013 until at least April 2014. The appeal judgment records that both appeals were dismissed.

This page summarises the Full Federal Court decision in BlueScope Steel Limited v Australian Competition and Consumer Commission [2025] FCAFC 118. It also refers to the earlier liability and penalty decisions identified in the appeal reasons. The focus here is on the commercial story, the issues argued on appeal, the outcome and the practical reading for businesses.

Readers who need the precise treatment of each appeal ground, each counterparty and each statutory issue should consult the judgment itself and the primary decisions. Competition law outcomes are highly fact-specific.