in the federal court of australia (fca) victoria … · malaysia airlines cargo sdn. bhd.,...

IN THE FEDERAL COURT OF AUSTRALIA (FCA)VICTORIA REGISTRY - FEDERAL COURT OF AUSTRALIAGENERAL DIVISION No: VID12/2007

NOTICE OF FILING

This document was filed electronically in the FEDERAL COURT OF AUSTRALIA (FCA) on18/09/2013.

DETAILS OF FILING

Document Lodged: Amended Document

File Number: VID12/2007

File Title: De Brett Seafood Pty Ltd & Anor v Qantas Airways Limited & Ors

District Registry: VICTORIA REGISTRY - FEDERAL COURT OF AUSTRALIA

Dated: 19/09/2013 Registrar

Note

This Notice forms part of the document and contains information that might otherwiseappear elsewhere in the document. The Notice must be included in the document servedon each party to the proceeding.

IN THE FEDERAL COURT OF AUSTRALIA (FCA)VICTORIA REGISTRY - FEDERAL COURT OF AUSTRALIAGENERAL DIVISION No: VID12/2007

NOTICE OF FILING

This document was filed electronically in the FEDERAL COURT OF AUSTRALIA (FCA) on18/09/2013.

DETAILS OF FILING

Document Lodged: Amended Document

File Number: VID12/2007

File Title: De Brett Seafood Pty Ltd & Anor v Qantas Airways Limited & Ors

District Registry: VICTORIA REGISTRY - FEDERAL COURT OF AUSTRALIA

Dated: 19/09/2013 Registrar

Note

This Notice forms part of the document and contains information that might otherwiseappear elsewhere in the document. The Notice must be included in the document servedon each party to the proceeding.

Filed on behalf of De Brett Seafood Pty Limited and another, Applicants

Prepared by Brooke Dellavedova

Law firm Maurice Blackburn Pty Limited

Tel 03 9605 2700 Fax 03 9258 9600

Email [email protected]

Address for service Level 10, 456 Lonsdale Street, Melbourne Victoria 3000

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

No. VID 12 of 2007 BETWEEN:

DE BRETT SEAFOOD PTY LIMITED (ACN 093 552 366) & Anor

Applicants

- and -

QANTAS AIRWAYS LIMITED (ACN 009 661 901)

& Ors according to the Schedule Respondents

EIGHTHSEVENTH AMENDED STATEMENT OF CLAIM (Amended pursuant to leave granted by the Honourable Justice Middleton on 18 September 2013)

Definitions....................................................................................................................................... 2Competition in relation to international airfreight services .......................................................... 13

The Global Market .................................................................................................................... 23The South East Asia Market...................................................................................................... 25The North Asia Market ............................................................................................................. 27Europe Market ........................................................................................................................... 29New Zealand and Oceania Market ............................................................................................ 31Indian subcontinent and Middle East Market ........................................................................... 33North and South America Market ............................................................................................. 35Africa Market ............................................................................................................................ 37The Country Originated Markets .............................................................................................. 39Australian Markets .................................................................................................................... 40Competition in the Markets ....................................................................................................... 41

Context of the Infringing Conduct ................................................................................................ 46Resolution 116ss and the IATA Fuel Price Index ..................................................................... 461999/2000: Implementing the IATA Fuel Price Index ............................................................. 50Request to US DoT ................................................................................................................... 51Lufthansa Fuel Index ................................................................................................................. 55Lufthansa Methodology in 2002 ............................................................................................... 58Other Methodologies ................................................................................................................. 60Local Understandings ................................................................................................................ 65

Filed on behalf of De Brett Seafood Pty Limited and another, Applicants

Prepared by Brooke Dellavedova

Law firm Maurice Blackburn Pty Limited

Tel 03 9605 2700 Fax 03 9258 9600

Email [email protected]

Address for service Level 10, 456 Lonsdale Street, Melbourne Victoria 3000

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

No. VID 12 of 2007

BETWEEN:

DE BRETT SEAFOOD PTY LIMITED (ACN 093 552 366) & Anor

Applicants

- and -

QANTAS AIRWAYS LIMITED (ACN 009 661 901)

& Ors according to the Schedule Respondents

EIGHTHSEVENTH AMENDED STATEMENT OF CLAIM (Amended pursuant to leave granted by the Honourable Justice Middleton on 18 September 2013)

Definitions....................................................................................................................................... 2

Competition in relation to international airfreight services .......................................................... 13

The Global Market .................................................................................................................... 23

The South East Asia Market...................................................................................................... 25

The North Asia Market ............................................................................................................. 27

Europe Market ........................................................................................................................... 29

New Zealand and Oceania Market ............................................................................................ 31

Indian subcontinent and Middle East Market ........................................................................... 33

North and South America Market ............................................................................................. 35

Africa Market ............................................................................................................................ 37

The Country Originated Markets .............................................................................................. 39

Australian Markets .................................................................................................................... 40

Competition in the Markets ....................................................................................................... 41

Context of the Infringing Conduct ................................................................................................ 46

Resolution 116ss and the IATA Fuel Price Index ..................................................................... 46

1999/2000: Implementing the IATA Fuel Price Index ............................................................. 50

Request to US DoT ................................................................................................................... 51

Lufthansa Fuel Index ................................................................................................................. 55

Lufthansa Methodology in 2002 ............................................................................................... 58

Other Methodologies ................................................................................................................. 60

Local Understandings ................................................................................................................ 65

2

8196443_11

Singapore ................................................................................................................................... 66

Singapore Understanding ...................................................................................................... 67

Indonesia ................................................................................................................................... 72

Indonesia Understanding ....................................................................................................... 72

Hong Kong ................................................................................................................................ 75

Hong Kong January 2000 Understanding ............................................................................. 76

Hong Kong October 2000 Understanding ............................................................................. 78

Hong Kong 2002 Understanding ........................................................................................... 79

Japan .......................................................................................................................................... 81

Japan Understanding ............................................................................................................. 82

Security Surcharge ........................................................................................................................ 83

Singapore ISS Understanding ................................................................................................... 85

Indonesia ................................................................................................................................... 87

October 2001 Indonesia Security Surcharge Understanding ................................................. 87

January 2003 Indonesia Security Surcharge Understanding ................................................. 88

May 2003 Indonesia Security Surcharge Understanding ...................................................... 88

September 2004 Indonesia Security Surcharge Understanding ............................................ 89

July 2005 Indonesia Security Surcharge Understanding ....................................................... 90

Hong Kong ................................................................................................................................ 91

October 2001 Hong Kong Insurance Surcharge Understanding ........................................... 91

December 2002 Hong Kong Insurance Surcharge Understanding ........................................ 92

2004 Hong Kong Security Charge Understanding ................................................................ 93

Contraventions .............................................................................................................................. 95

Overcharge .................................................................................................................................... 98

Schedule A - Map of IATA Traffic Conference Areas .............................................................. 107

Schedule B – Relevant Persons................................................................................................... 108

Schedule C - Singapore Understanding ...................................................................................... 112

Schedule D – Indonesia Understanding ...................................................................................... 132

Schedule E – Hong Kong 2002 Understanding .......................................................................... 139

Schedule F – Japan Understanding ............................................................................................. 159

DEFINITIONS

In this EighthSixth Amended Statement of Claim:

Africa means the geographic region comprising Algeria, Angola, Benin, Botswana, Burkina

Faso, Burundi, Cameroon, Canary Islands, Cape Verde, Central African Republic, Ceuta, Chad,

Comoros, Côte d'Ivoire, Democratic Republic of the Congo, Djibouti, Egypt, Equatorial Guinea,

3

8196443_11

Eritrea, Ethiopia, Gabon, Gambia, Ghana, Guinea, Guinea-Bissau, Kenya, Lesotho, Liberia,

Libya, Madagascar, Madeira, Malawi, Mali, Mauritania, Mauritius, Mayotte, Melilla, Morocco,

Mozambique, Namibia, Niger, Nigeria, Republic of the Congo, Réunion, Rwanda, Sahrawi Arab

Democratic Republic, Saint Helena, São Tomé and Príncipe, Senegal, Seychelles, Sierra Leone,

Somalia, South Africa, Sudan, Swaziland, Tanzania, Togo, Tunisia, Uganda, Zambia and

Zimbabwe.

airfreight means goods transported by air transport.

air waybill means a non-negotiable instrument of air transport for goods that serves as a receipt

for the customer, indicating that the carrier has accepted the goods listed therein and obligates

itself to carry the goods to the destination according to specified conditions.

Airlines means carriers engaged in the provision of international airfreight services, but does not

include the respondents.

Australian activity means any of:

(i) unloading of Australian international airfreight in Australia;

(ii) delivering Australian international airfreight in Australia;

(iii) accepting delivery of Australian international airfreight in Australia;

(iv) loading of international Australian airfreight in Australia;

(iv) receiving bookings in Australia for carriage of Australian international airfreight;

(v) receiving payment in Australia for carriage of Australian international airfreight; and

(iii) providing facilities in Australia for:

(A) booking carriage of Australian international airfreight; and

(B) receiving payment for carriage of Australian international airfreight,

Australian international airfreight means goods transported from Australia to another country

or from another country to Australia by air transport.

Australian international airfreight services means the carriage of goods to or from Australia

by air transport or both.

carrier means an airline which carries airfreight.

4

8196443_11

codeshare agreement means an agreement between carriers where each party may purchase

seats on another and then sell those seats to its own customers, which also allows for co-

operative arrangements to transport airfreight.

customer has the meaning given to it in paragraph 23, below.

Destination Port has the meaning given to it in paragraph 27.

Direct Service has the meaning given to it in paragraph 27.

Europe means the geographic region comprising Albania, Andorra, Armenia, Austria,

Azerbaijan, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech

Republic, Denmark, Estonia, Faroe Islands, Finland, France, FYR Macedonia, Georgia,

Germany, Greece, Greenland, Hungary, Iceland, Ireland, Italy, Kazakhstan, Kyrgyzstan, Latvia,

Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Moldova, Monaco, Montenegro,

Netherlands, Norway, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovakia,

Slovenia, Spain, Sweden, Switzerland, Turkey, Turkmenistan, Ukraine, United Kingdom,

Uzbekistan, Vatican City and Yugoslavia.

freight alliance means a co-operative arrangement between carriers including harmonised

airfreight products, synchronised sales and service activities and standardised handling

processes, such as the WOW alliance in which the Second, Third, Fourth and Eighth

Respondents and others participated at relevant times.

hub means a hub identified in any and all of paragraphs 34 to 41 below.

Indian subcontinent and Middle East means the geographic region comprising Afghanistan,

Bahrain, Bangladesh, Bhutan, Cyprus, Egypt, India, Iran, Iraq, Israel, Jordan, Kuwait, Lebanon,

Maldives, Nepal, Oman, Pakistan, Qatar, Saudi Arabia, Sri Lanka, Sudan, Syria, Turkey, United

Arab Emirates and Yemen.

integrated alliance means a co-operative arrangement between carriers which includes a degree

of common ownership, coordination of pricing, profit sharing and standardisation of equipment,

services and supplies.

IATA means the International Air Transport Association.

Indirect Service has the meaning given to it in paragraph 27.

5

8196443_11

Intermediate Port has the meaning given to it in paragraph 27.

interlining means the system developed by IATA which enables airfreight to be transported by

air from the point of origin to the final destination using multiple carriers, flights or routings on a

single air waybill bought in a single transaction, using a single currency.

international airfreight means goods transported from one country to another by air transport.

international airfreight services means the carriage of international airfreight by air transport.

marketing alliance means a co-operative arrangement between carriers which includes co-

ordinated itineraries, reasonably uniform standards of service and reciprocal frequent flyer

programs and lounge access. Examples include “oneworld” which included the First, Fifth and

Ninth Respondents and others and “Star Alliance” which included the Second, Third, Fourth,

Sixth and Seventh Respondent and others.

market is any of the markets defined in paragraphs 46, 48, 49, 50, 55, 57, 61, 63, 67, 69, 73, 75,

79, 81, 85, 87, 91, and 93, 94, 97 and 98 below.

New Zealand and Oceania means the geographic region comprising American Samoa,

Chatham Islands, Cook Islands, Easter Island, Federated States of Micronesia, Fiji, French

Polynesia, Guam, Hawaii, Juan Fernandez Islands, Kiribati, Loyalty Islands, Maluku Islands,

Marshall Islands, Nauru, New Caledonia, New Zealand, Norfolk Island, Northern Mariana

Islands, Niue, Palau, Papua, Papua New Guinea, Pitcairn Islands, Samoa, Solomon Islands,

Tokelau, Tonga, Tuvalu, Vanuatu, Wake Island, Wallis and Futana, Indonesia and West Papua.

North and South America means the geographic region comprising Anguilla, Antigua and

Barbuda, Argentina, Aruba, Bahamas, Barbados, Belize, Bermuda, Bolivia, Brazil, British

Virgin Islands, Canada, Cayman Islands, Chile, Clipperton Island, Colombia, Costa Rica, Cuba,

Dominica, Dominican Republic, Ecuador, El Salvador, Falkland Islands, French Guiana,

Grenada, Greenland, Guatemala, Guyana, Haiti, Honduras, Jamaica, Martinique, Mexico,

Montserrat, Netherlands Antilles, Nicaragua, Panama, Paraguay, Peru, Puerto Rico, Saint

Barthelemy, Saint Kitts and Nevis, Saint Lucia, Saint Martin, Saint Pierre and Miquelon, Saint

Vincent and the Grenadines, South Georgia, South Sandwich Islands, Suriname, Trinidad and

Tobago, United States of America, Uruguay and Venezuela.

North Asia means the geographic region comprising Japan, China, Taiwan, North Korea, South

Korea and Mongolia.

6

8196443_11

Other Cartel Participants includes ABSA Cargo Airline, Air Canada, Air China, Air China

Cargo, Air France, Air Mauritius, Alitalia, All Nippon Airways, Asiana Airlines Inc, Cargolux

Airline International, DAS Air Ltd, Ethiopian Airlines Corp, El Al Israel Airlines, Emirates,

Kenya Airlines Ltd, KLM, Korean Air Lines Co. Ltd, Lan Airlines S.A., Lan Cargo S.A.,

Malaysia Airlines Cargo Sdn. Bhd., Martinair, Nippon Cargo Airlines, Polar Air Cargo Inc., P T

Garuda Indonesia Ltd, Saudi Arabian Airlines, Scandinavian Airlines, South African Airways,

Swiss International Airlines and Thai Airways.

Origin Port has the meaning given to it in paragraph 27.

region means each of Australia, Africa, Europe, Indian subcontinent and Middle East, New

Zealand and Oceania, North and South America, North Asia and South East Asia.

Return Route has the meaning given to it in paragraph 29.

Route has the meaning given to it in paragraph 28.

Sector has the meaning given to it in paragraph 27.

South East Asia means the geographic region comprising Brunei Darussalam, Cambodia, East

Timor, Indonesia, Laos, Malaysia, Burma, Philippines, Singapore, Thailand and Vietnam.

TACT means the IATA Air Cargo Tariff and Rules.

TC1 means IATA Traffic Conference Area 1 consisting of the North and South American

continents and the adjacent islands, Greenland, Bermuda, the West Indies and the islands of the

Caribbean Sea and the Hawaiian Islands (including Midway and Palmyra).

TC2 means IATA Traffic Conference Area 2 consisting of Europe (including the European part

of Russia) and the adjacent islands, Iceland, the Azores, all of Africa and the adjacent islands,

Ascension Island, and that part of Asia lying west of and including Iran (Islamic Rep. of).

TC3 means IATA Traffic Conference Area 3 consisting of Asia and the adjacent islands (except

the area included in TC2), all of the East Indies, Australia, New Zealand and the adjacent

islands, and the islands of the Pacific Ocean (except those included in TC1).

Schedule A to this pleading is an IATA map showing TC1, TC2 and TC3 from the IATA TACT

Rules 2007.

7

8196443_11

Schedule B to this pleading lists relevant persons referred to in the pleading and their employer

and position.

1. At all material times:

(a) The First Applicant (“De Brett”) was and is a company registered pursuant to the

Corporations Act 2001 (Cth) (“the Corporations Act”) and capable of suing; and

carried and carries on a business of, inter alia, processing, marketing, selling and

exporting seafood.

(b) The Second Applicant (“Wisbey”) was and is a company registered pursuant to the

Corporations Act and capable of suing; and carried and carries on a business of, inter

alia, importing medical, dental and surgical instruments and equipment for

distribution in Australia, New Zealand and Pacific Island countries.

2. The Applicants bring this proceeding as a representative proceeding pursuant to Part IVA

of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”).

3. The group members to whom this proceeding relates (“the Group Members”) are all

those persons resident in Australia as at 11 January 2007 who during the period 1 January

2000 to 11 January 2007 (“the Period”) paid identified amounts totalling more than twenty

thousand Australian dollars (AUD$20,000.00) for the carriage of goods to or from

Australia including in each instance a component by air and who are not related parties of

the Respondents or any of them within the meaning of the Corporations Act.

4. The First Respondent, Qantas Airways Pty Ltd (ACN 009 661 901) (“Qantas”), at all

material times:

(a) was and is a publicly listed company registered pursuant to the Corporations Act and

capable of being sued;

(b) was and is a trading corporation within the meaning of the Trade Practices Act 1974

(Cth) (“the TPA”);

(c) carried and carries on business in Australia and between 36 and 40 other countries,

inter alia, as a carrier of international airfreight to and from Australia; and

(d) carried and carries on the said business in Australia in trade or commerce within the

meaning of the TPA.

8

8196443_11

5. In the financial years ending June 2002 to June 2006, the gross revenue of Qantas’ freight

division from international airfreight services, and from Australian international airfreight

services (excluding revenue from domestic freight Routes) was (AUDm):

Global revenue from international airfreight services

Revenue from Australian international airfreight services from flights departing Australia

Revenue from Australian international airfreight services from flights arriving in Australia

2002 512.75 134.93 249.71

2003 524.54 135.94 262.07

2004 486.33 131.54 241.51

2005 683.38 132.27 331.91

2006 783.20 127.24 370.44

Total 2990.20 661.92 1455.64

6. In the same period, the revenue derived from fuel surcharges imposed by Qantas on

international airfreight services was (AUDm):

Global fuel surcharge revenue

Revenue from fuel surcharges from flights departing Australia

Revenue from fuel surcharges from flights arriving in Australia

2002 13.77 4.80 6.53

2003 21.95 9.80 8.84

2004 29.35 10.72 12.58

2005 71.39 14.20 34.13

2006 118.74 17.81 56.01

Total 255.20 57.33 118.09

7. During the financial years ending June 2002 to June 2006 Qantas provided approximately

24% of Australian international airfreight services, based on weight.

5.8. The Second Respondent, Lufthansa Cargo Aktiengesellschaft (“Lufthansa”), at all material

times:

(a) was and is a company registered pursuant to the laws of Germany;

(b) between 22 December 1994 and 26 April 2006 was a foreign company registered

pursuant to Part 5B.2 of the Corporations Act and capable of being sued;

(c) was and is a foreign corporation within the meaning of the TPA;

(d) carried and carries on business, inter alia, as a carrier of international airfreight to

and from Australia; and

(e) carried and carries on the said business in Australia within the meaning of the TPA.

9

8196443_11

6.9. The Third Respondent, Singapore Airlines Ltd (ARBN 1056195) (“Singapore Airlines”),

at all material times:

(a) was and is a company registered pursuant to the laws of Singapore;

(b) was and is a foreign company registered pursuant to Part 5B.2 of the Corporations

Act and capable of being sued;

(c) until 29 March 2007, had Fellstar Nominees (NSW) Pty Ltd (ACN 000 707 755) as

its local agent for the purposes of Divisions 2 and 3 of Part 5.2B of the Corporations

Act, which agent was authorised to accept service of process on its behalf at Level

33, 680 George Street, Sydney in the State of New South Wales and from 29 March

2007 has had TMF Nominees (Aust) Pty Ltd (ACN 121 059 023), Level 9, 50 Park

Street, Sydney in the State of New South Wales, as its local agent for the purposes of

Divisions 2 and 3 of Part 5.2B of the Corporations Act;

(d) was and is a foreign corporation within the meaning of the TPA;

(e) carried and carries on business, inter alia, as a carrier of international airfreight to

and from Australia; and

(f) carried and carries on the said business in Australia within the meaning of the TPA.

7.10. The Fourth Respondent, Singapore Airlines Cargo Pte Ltd (ARBN 95934857)

(“Singapore Airlines Cargo”), at all material times:

(a) was and is a company registered pursuant to the laws of Singapore;



(c) until 12 April 2007, had Fellstar Nominees (NSW) Pty Ltd (ACN 000 707 755) as its

local agent for the purposes of Divisions 2 and 3 of Part 5.2B of the Corporations

Act, which agent was authorised to accept service of process on its behalf at Level

33, 680 George Street, Sydney in the State of New South Wales and from 12 April

2007 has had TMF Nominees (Aust) Pty Ltd (ACN 121 059 023), Level 9, 50 Park

Street, Sydney in the State of New South Wales, as its local agent for the purposes of

Divisions 2 and 3 of Part 5.2B of the Corporations Act;


10

8196443_11


and from Australia;


11. In the years ending 31 December 2003, 2004, 2005 and 2006, Singapore Airlines Cargo’s

gross revenue from international airfreight services, and from Australian international

airfreight services, was as set out in the following table:

Global revenue from international airfreight services (USD)

Revenue from Australian international airfreight services on Routes to and from Australia (AUD)

2003 1,208,625,938 253,165,997

2004 1,558,915,826 268,416,689

2005 1,840,155,504 277,755,083

2006 2,070,533,320 314,906,573

Total 6,678,230,588 1,114,244,342

8.12. The Fifth Respondent, Cathay Pacific Airways Ltd (ARBN 479514) (“Cathay Pacific”),

at all material times:

(a) was and is a company registered pursuant to the laws of Hong Kong;



(c) has John Swire & Sons Pty Ltd (ACN 000 106 141) as its local agent for the

purposes of Divisions 2 and 3 of Part 5.2B of the Corporations Act, which agent is

authorised to accept service of process on its behalf at Level 112, 10 - 148 Spring

Street, Sydney in the State of New South Wales;


(e) carried and carries on business inter alia as a carrier of international airfreight to and

from Australia;


13. In the calendar years between 2004 and 2006, the total tonnage of air cargo carried or

contracted to be carried to Australia by Cathay Pacific and the total revenue derived from

the carriage of that air cargo, was as set out in the following table:

11

8196443_11

Calendar year Total tonnage Total Revenue (HKD)

2004 33,738 595,996,005

2005 38,455 644,339,710

2006 37,471 586,063,480

Total 109,664 1,826,399,195

14. In the calendar years between 2004 and 2006, the total tonnage of air cargo carried or

contracted to be carried from Australia by Cathay Pacific and the total revenue derived

from the carriage of that air cargo, was as set out in the following table:

Calendar year Total tonnage Total Revenue (HKD)

2004 24,982 241,940,484

2005 25,401 251,546,401

2006 25,710 253,482,690

Total 76,093 746,969,575

9.15. The Sixth Respondent, Air New Zealand Ltd (ARBN 312685) (“Air New Zealand” or

“Air NZ”), at all material times:

(a) was and is a company registered pursuant to the laws of New Zealand;



(c) has John Harrison as its local agent for the purposes of Divisions 2 and 3 of Part

5.2B of the Corporations Act, which agent is authorised to accept service of process

on its behalf at Level 11, 135-151 Clarence Street , Sydney in the State of New

South Wales;


(e) carried and carries on business inter alia as a carrier of international airfreight to and

from Australia;


10.16. The Seventh Respondent, Air New Zealand (Australia) Pty Ltd (ACN 084 974 569)

(“Air NZ Aust”), at all material times:

(a) was and is incorporated pursuant to the laws of NSW;

(b) was and is a subsidiary of Air NZ;

(c) was and is a trading corporation within the meaning of section 4 of the TPA; and

12

8196443_11

(d) carried and carries on business, inter alia, as a supplier of international airfreight

services in Australia.

11.17. The Eighth Respondent, Japan Airlines International Co. Ltd (ARBN 564358)

(“Japan Airlines” or “JAL”) (formerly the Eighth Respondent), at all material times:

(a) was and is a company registered pursuant to the laws of Japan;


Act and capable of being sued; and

(c) [Deleted]

(d) [Deleted]


and from Australia.

(f) [Deleted]

12.18. The Ninth Respondent, British Airways PLC (ARBN 2747597) (“British Airways”

or “BA”), at all material times:

(a) was and is a company registered pursuant to the laws of United Kingdom;



(c) has TMF Nominees (Aust) Pty Limited (ACN 121 059 023) as its local agent for the

purposes of Divisions 2 and 3 of Part 5.2B of the Corporations Act, which agent is

authorised to accept service of process on its behalf at Level 16, 201 Elizabeth Street

Level 9, 50 Park Street, Sydney in the State of New South Wales;



and from Australia;


19. In the fiscal years between 1 April 2002 and 31 March 2006, British Airways' gross

revenue from international airfreight services, and from Australian international airfreight

services, was as set out in the following table (in GBP):

13

8196443_11

Revenue from all international airfreight services

Revenue from Australian international airfreight services

2002-2003 527,438,618 15,787,585

2003-2004 732,790,240 15,566,253

2004-2005 594,034,995 18,652,481

2005-2006 678,656,178 19,424,168

Total 2,532,920,031 69,430,487

20. In the same period, the revenue derived by British Airways from fuel surcharges applied

on international airfreight services was as set out in the following table (in GBP):

Revenue from fuel surcharges applied to all international airfreight services

Revenue from fuel surcharges applied to Australian international airfreight services

2002-2003 18,857,142 468,654

2003-2004 31,998,489 794,587

2004-2005 75,326,531 1,826,569

2005-2006 134,865,007 2,631,397

Total 261,047,169 5,721,207

COMPETITION IN RELATION TO INTERNATIONAL AIRFREIGHT SERVICES

13.21. At all times during the Period:

(a) approximately 80 to 90% of all international airfreight, including Australian

international airfreight was carried on passenger aircraft; and

(b) approximately 10 to 20% of all international airfreight, including Australian

international airfreight was carried on dedicated cargo aircraft.

14.22. All international air flights into and out of Australia in the Period, including for all of

the Respondents, are recorded in electronic data files saved on the electronic compact disc

which was served with and formed Schedule 1 to the Amended Statement of Claim (“the

direct flight data”).

15.23. During the Period, there was demand for international airfreight services by persons

(“customers”):

(a) wishing to transport international airfreight from a point of origin in one country to a

destination in another country; and

(b) who would become obliged to pay for those international airfreight services if

provided.

14

8196443_11

PARTICULARS

The Applicants refer to paragraphs 21 and 22 above. Further particulars may be provided after discovery.

16.24. During the Period, carriers supplied international airfreight services in order to meet

the demand alleged in the preceding paragraph.

PARTICULARS

The carriers included but were not limited to the Respondents, the Other Cartel Participants as that term is defined at paragraph 94 below and Aeroflot, Air Hong Kong, Air India, American Airlines, Australian Airlines, China Airlines, China Eastern Airlines, China Northwest Airlines, China Southern Airlines, China Southwest Airlines, China Yunnan Airlines, Continental Airlines, DHL, Dragonair, Egyptair, EVA Air, Evergreen, FedEx, Finnair, Garuda, Ghana Airways, Gulf Air, Indian Airlines, Japan Asia Airways, Ken Cargo, Kuwait Airways, Malaysia Airlines, Mandarin Airlines, Middle East Airlines, Myanmar Airways International, Nepal Airlines, Nippon Cargo, Northwest Airlines, Oman Air, Orient Thai Airlines, Philippine Airlines, Pakistan International Airlines, Qatar Airways, Royal Brunei Airlines, Royal Jordanian Airlines, SilkAir, Sri Lankan Airlines, Transaero Airlines, Turkish Airlines, United Airlines, UPS, Vietnam Airlines, Virgin Atlantic, Yemen Airways or any subsidiaries of those carriersairlines responsible for international airfreight services.

The Applicants refer to paragraphs 21 and 22 above.

Further particulars may be provided after discovery.

17.25. Speed of delivery of airfreight including international airfreight is a more important

consideration for customers than the particular route of carriage.

18.26. [Deleted]

27. Goods are transported internationally by air from their airport of origin in one country

(“Origin Port”) to a destination airport in another country (“Destination Port”):

(a) directly (“Direct Service”); or

(b) indirectly via a third (or more) airport (“Intermediate Port”) (“Indirect Service”,

each leg of which is a “Sector”). Intermediate Ports may be located anywhere in the

world and are not necessarily on the most direct Route between the Origin Port and

the Destination Port.

28. The path by which goods are transported from the Origin Port to the Destination Port

including all Sectors is the “Route”.

15

8196443_11

29. Where a carrier provided international airfreight services on a Route it was in most cases

able to provide international airfreight services from the Destination Port back to the

Origin Port (“Return Route”), directly or between one or more intermediate ports.

19.30. International airfreight is routed by the carrier between the origin and destination as

is convenient to the carrier at the relevant time, rather than via a fixed route between those

points.

20.31. Carriage of international airfreight may occur:

(a) on the one carrier utilising its own aircraft; or

(b) by a carrier utilising one or more other carriers’ aircraft by means of:

(i) interlining;

(ii) freight alliances;

(iii) codeshare agreements;

(iv) marketing alliances; or

(v) integrated alliances; and or

(c) by a carrier utilising its own and one or more other carriers’ aircraft by means of:

(i) interlining;

(ii) freight alliances;

(iii) codeshare agreements;

(iv) marketing alliances; or

(v) integrated alliances; and

(d) including one or more, but not all, segments by road or rail transport,

(each possibility above is referred to below as a “mode of carriage”).

21.32. Speed of delivery of international airfreight is a more important consideration for

customers than the particular mode of carriage.

22.33. International airfreight is transported by the carrier between the origin and

destination by a mode or combination of modes of carriage that is convenient to the carrier

at the relevant time.

16

8196443_11

23.34. At all times during the Period, at the airport or group of airports at:

(a) Bangkok;

(b) Denpasar;

(c) Ho Chi Minh City;

(d) Hong Kong;

(e) Jakarta;

(f) Kuala Lumpur;

(g) Manila; and

(h) Singapore,

(each being a “South East Asian hub”) there were:

(i) at least daily international flights by one or more carriers carrying international

airfreight to or from Australia;

(j) on average at least 38,000 flights per annum carrying international airfreight to

destinations, or from points of origin, in South East Asia; and

(k) facilities for the transfer of airfreight between aircraft and between aircraft and road

or rail transport,

which permitted the convenient carriage of international airfreight between any point of

origin or destination in Australia and any point of origin or destination in South East Asia.

PARTICULARS

Each of the South East Asian hubs offered a dense and frequent network of connecting flights to destinations in South East Asia, including to each other South East Asian hub.

At each of the South East Asian hubs, the facilities included crew and machinery for:

(i) the unloading and uploading of unit loading devices (“ULDs”) from aircraft;

(ii) the storage of ULDs including refrigerated storage or storage suitable for refrigerated ULDs;

(iii) the packing and unpacking of ULDs or ULD packing and unpacking service providers; and

17

8196443_11

(iv) the transfer of airfreight from aircraft to an extensive road or rail transport network.


(a) Beijing;

(b) Guangzhou;

(c) Hong Kong;

(d) Nagoya;

(e) Osaka;

(f) Seoul;

(g) Shanghai;

(h) Taipei; and

(i) Tokyo,

(each being a “North Asian hub”) there were:

(j) at least daily international flights by one or more carriers carrying international


(k) on average at least 65,000 flights per annum carrying international airfreight to

destinations, or from points of origin, in North Asia; and

(l) facilities for the transfer of airfreight between aircraft and between aircraft and road

or rail transport,


origin or destination in Australia and any point of origin or destination in North Asia.

PARTICULARS

Each of the North Asian hubs offered a dense and frequent network of connecting flights to destinations in North Asia, including to each other North Asian hub.

At each of the North Asian hubs, the facilities included crew and machinery for:

(i) the unloading and uploading of ULDs from aircraft;


18

8196443_11




(a) Dubai;

(b) Frankfurt;

(c) London;

(d) Paris;

(e) Vienna; and

(f) Rome,

(each being a “European hub”) there were:

(g) at least bi-weekly (and in the case of London, Frankfurt, Vienna and Dubai, daily)

international flights by one or more carriers carrying international airfreight to or

from Australia;

(h) on average at least 35,000 flights per annum carrying international airfreight to

destinations, or from points of origin, in Europe; and

(i) facilities for the transfer of airfreight between aircraft and between aircraft and road

or rail transport,


origin or destination in Australia and any point of origin or destination in Europe.

PARTICULARS

Each of the European hubs offered a dense and frequent network of connecting flights to destinations in Europe, including to each other European hub.

At each of the European hubs, the facilities included crew and machinery for:




19

8196443_11



(a) Auckland;

(b) Christchurch;

(c) Honolulu;

(d) Nadi; and

(e) Wellington,

(each being a “New Zealand and Oceanian hub”) there were:

(f) at least daily international flights by one or more carriers carrying international


(g) on average at least 21,000 flights per annum carrying international airfreight to

destinations, or from points of origin, in New Zealand and Oceania; and

(h) facilities for the transfer of airfreight between aircraft and between aircraft and road

or rail transport,


origin or destination in Australia and any point of origin or destination in New Zealand and

Oceania.

PARTICULARS

Each of the New Zealand and Oceanian hubs offered a dense and frequent network of connecting flights to destinations in New Zealand and Oceania, including to each other New Zealand and Oceanian hub.

At each of the New Zealand and Oceanian hubs, the facilities included crew and machinery for:





20

8196443_11


(a) Bahrain;

(b) Dubai; and

(c) Mumbai,

(each being an “Indian subcontinent and Middle Eastern hub”) there were:

(d) at least bi-weekly international flights by one or more carriers carrying international


(e) on average at least 36,000 flights per annum carrying international airfreight to

destinations, or from points of origin, in the Indian subcontinent and Middle East;

and

(f) facilities for the transfer of airfreight between aircraft and between aircraft and road

or rail transport,


origin or destination in Australia and any point of origin or destination in the Indian

subcontinent and Middle East.

PARTICULARS

Each of the Indian subcontinent and Middle Eastern hubs offered a dense and frequent network of connecting flights to destinations in the Indian subcontinent and Middle East, including to each other Indian subcontinent and Middle Eastern hub.

At each of the Indian subcontinent and Middle Eastern hubs, the facilities included crew and machinery for:






(a) Buenos Aires;

21

8196443_11

(b) Chicago;

(c) Los Angeles;

(d) New York;

(e) San Francisco;

(f) Santiago; and

(g) Vancouver,

(each being a “North and South American hub”) there were:

(h) at least bi-weekly (and in the case of Chicago, Los Angeles, New York, San

Francisco and Vancouver, daily) international flights by one or more carriers

carrying international airfreight to or from Australia;

(i) on average at least 31,000 flights per annum carrying international airfreight to

destinations, or from points of origin, in North and South America; and

(j) facilities for the transfer of airfreight between aircraft and between aircraft and road

or rail transport,


origin or destination in Australia and any point of origin or destination in North and South

America.

PARTICULARS

Each of the North and South American hubs offered a dense and frequent network of connecting flights to destinations in North and South America, including to each other North and South American hub.

At each of the North and South American hubs, the facilities included crew and machinery for:





22

8196443_11


(a) Dubai;

(b) Johannesburg; and

(c) Port Louis,

(each being an “African hub”) there were:

(d) at least bi-weekly (and in the case of Johannesburg and Dubai, daily) international

flights by one or more carriers carrying international airfreight to or from Australia;

(e) on average at least 10,000 flights per annum carrying international airfreight to

destinations, or from points of origin, in Africa; and

(f) facilities for the transfer of airfreight between aircraft and between aircraft and road

or rail transport,


origin or destination in Australia and any point of origin or destination in Africa.

PARTICULARS

Each of the African hubs offered a dense and frequent network of connecting flights to destinations in Africa, including to each other African hub.

At each of the African hubs, the facilities included crew and machinery for:






(a) Sydney;

(b) Brisbane;

(c) Melbourne; and

(d) Perth,

23

8196443_11

(each being an “Australian hub”) there were:

(e) on average, at least bi-weekly (and in the case of Sydney, Melbourne and Perth,

daily) international flights by one or more carriers carrying international airfreight

between Australia and each of the regions (other than Australia);

(f) on average at least 45,000 flights per annum carrying international airfreight to

destinations, or from points of origin, in Australia; and

(g) facilities for the transfer of airfreight between aircraft and between aircraft and road

or rail transport,

which permitted the convenient carriage of international airfreight throughout Australia.

PARTICULARS

Each of the Australian hubs offered a dense and frequent network of connecting flights to destinations in Australia, including to each other Australian hub.

At each of the Australian hubs, the facilities included crew and machinery for:





31.42. At all times during the Period, there were at least daily international flights by one or

more carriers carrying international airfreight to or from at least one hub in each region to

at least one hub in each of the other regions.

The Global Market

32.43. By reason of the matters alleged in paragraphs 23 to 42, during the Period, there

were various routes of carriage for international airfreight between:

(a) any hub and any other hub; further or alternatively

(b) any point of origin and any destination in the regions,

24

8196443_11

providing effectively equivalent speed of delivery for the purposes of customers for

international airfreight services.

33.44. By reason of the matters alleged in paragraphs 23 to 42, during the Period, there

were various modes of carriage for international airfreight between:

(a) any hub and any other hub; further or alternatively

(b) any point of origin and any destination in the regions,



34.45. By reason of the matters alleged in paragraphs 23 to 44, during the Period, each of

the carriers could:

(a) supply international airfreight services between any hub to any other hub; further or

alternatively

(b) substitute any route of carriage for international airfreight between any hub to any

other hub for another route of carriage between those two hubs; further or

alternatively

(c) substitute any mode of carriage for international airfreight between any hub to any

other hub for another mode of carriage between those two hubs; further or

alternatively

(d) supply international airfreight services between any point of origin and any

destination in the regions; further or alternatively

(e) substitute any route of carriage for international airfreight between any point of

origin and any destination in the regions for another route of carriage between those

two places; further or alternatively

(f) substitute any mode of carriage for international airfreight between any point of

origin and any destination in the regions for another mode of carriage between those

two places.

35.46. By reason of the matters alleged in paragraphs 23, 24 and 43 to 45, further, the

matters alleged in paragraphs 110 to Error! Reference source not found., during the

eriod, there was a global market for the supply of international airfreight services (the

“Global Market”).

25

8196443_11

36.47. The Global Market was a market within the meaning of section 4E of the TPA.

PARTICULARS

The Global Market includes the supply of international airfreight services to and from Australia. The Applicants refer to the matters alleged in paragraphs 21 and 22. All international airfreight services to and from Australia included one or more of the Australian activities.


37.48. [Deleted]

38.49. Further or alternatively, that part of the Global Market which comprised Australian

international airfreight services (the “Australian Global Market”) was a market within

the meaning of section 4E of the TPA.

PARTICULARS

The Australian Global Market comprises the supply of international airfreight services to and from Australia. All Australian international airfreight services included one or more of the Australian activities. The Applicants refer to the matters alleged in paragraphs 21 and 22.

39.50. [Deleted]

40.51. Paragraphs 52 to 98 below are further or in the alternative to the five preceding

paragraphs.

The South East Asia Market

41.52. By reason of the matters alleged in paragraphs 23 to 30, 34 and 41, during the

Period, there were various routes of carriage for international airfreight between:

(a) any Australian hub and any South East Asian hub; further or alternatively

(b) any point of origin or destination in Australia and any point of origin or destination

in South East Asia,



42.53. By reason of the matters alleged in paragraphs 23, 24, 31 to 34 and 41, during the

Period, there were various modes of carriage for international airfreight between:

26

8196443_11

(a) any Australian hub and any South East Asian hub; further or alternatively


in South East Asia,



43.54. By reason of the matters alleged in paragraphs 23 to 34, 41, 52 and 53, during the

Period, each of the carriers could:

(a) supply international airfreight services between any Australian hub and any South

East Asian hub; further or alternatively

(b) substitute any route of carriage for international airfreight between any Australian

hub and any South East Asian hub for another route of carriage between those two

hubs; further or alternatively

(c) substitute any mode of carriage for international airfreight between any Australian

hub and any South East Asian hub for another mode of carriage between those two

hubs; further or alternatively

(d) supply international airfreight services between any point of origin or destination in

Australia and any point of origin or destination in South East Asia; further or

alternatively


origin or destination in Australia and any point of origin or destination in South East

Asia for another route of carriage between those two places; further or alternatively


origin or destination in Australia and any point of origin or destination in South East

Asia for another mode of carriage between those two places.

44.55. By reason of the matters alleged in paragraphs 23, 24 and 52 to 54, at all times

during the Period there was a market for the supply of international airfreight services

between Australia and South East Asia (the “SE Asia Market”).

PARTICULARS

Various of the respondents or persons on their behalf identified the South East Asia Market as the market for international airfreight services between Australia and

27

8196443_11

South East Asia in applications made to the Australian Competition & Consumer Commission for Australian Competition & Consumer Commission Authorisation Nos:

(i) A90565 dated 12 May 1995 (see in particular, sections 4.2 and 9.2);

(ii) A90649/A90655 dated 22 July 1998 (see in particular, sections 5.2 and 9.2);

(iii) A30202 dated 10 May 2000 (see in particular, section 6.2);

(iv) A30220/A30221/A30222/A90862/A90863 dated 9 September 2003 (see in particular, paragraphs 10.14 to 10.18 and 10.31); and

(v) A30226/20337 dated 8 February 2005 (see in particular, paragraphs 9.17, 9.115 and 9.116).

Copies of each of the Authorisations and applications including submissions are available for inspection from the offices of the solicitors for the Applicants by appointment.

Further particulars may be provided following the completion of discovery.

45.56. The SE Asia Market was a market within the meaning of section 4E of the TPA.

PARTICULARS

All international airfreight services between Australia and South East Asia described in those paragraphs included one or more of the Australian activities.


46.57. [Deleted]

The North Asia Market



(a) any Australian hub and any North Asian hub; further or alternatively


in North Asia,



48.59. By reason of the matters alleged in paragraphs 23, 24, 31 to 33, 35 and 41, during the


28

8196443_11

(a) any Australian hub and any North Asian hub; further or alternatively


in North Asia,



49.60. By reason of the matters alleged in paragraphs 23 to 33, 35, 41, 58 and 59, during the


(a) supply international airfreight services between any Australian hub and any North

Asian hub; further or alternatively


hub and any North Asian hub for another route of carriage between those two hubs;

further or alternatively


hub and any North Asian hub for another mode of carriage between those two hubs;



Australia and any point of origin or destination in North Asia; further or alternatively


origin or destination in Australia and any point of origin or destination in North Asia

for another route of carriage between those two places; further or alternatively


origin or destination in Australia and any point of origin or destination in North Asia

for another mode of carriage between those two places.



between Australia and North Asia (the “North Asia Market”).

PARTICULARS

Various of the respondents or persons on their behalf identified the North Asia Market as the market for international airfreight services between Australia and North Asia in applications made to the Australian Competition & Consumer

29

8196443_11

Commission for Australian Competition & Consumer Commission Authorisation Nos:

(i) A90649/A90655 dated 22 July 1998 (see in particular, sections 5.2 and 9.2);

(ii) A30202 dated 10 May 2000 (see in particular, section 6.2);

(iii) A30220/A30221/A30222/A90862/A90863 dated 9 September 2003 (see in particular, paragraphs 10.14 to 10.18 and 10.31); and

(iv) A30226/20337 dated 8 February 2005 (see in particular, paragraphs 9.17, 9.115 and 9.116).



51.62. The North Asia Market was a market within the meaning of section 4E of the TPA.

PARTICULARS

All international airfreight services between Australia and North Asia described in those paragraphs included one or more of the Australian activities.


52.63. [Deleted]

Europe Market



(a) any Australian hub and any European hub; further or alternatively


in Europe,





(a) any Australian hub and any European hub; further or alternatively

30

8196443_11


in Europe,





(a) supply international airfreight services between any Australian hub and any

European hub; further or alternatively


hub and any European hub for another route of carriage between those two hubs;



hub and any European hub for another mode of carriage between those two hubs;



Australia and any point of origin or destination in Europe; further or alternatively


origin or destination in Australia and any point of origin or destination in Europe for

another route of carriage between those two places; further or alternatively


origin or destination in Australia and any point of origin or destination in Europe for

another mode of carriage between those two places.



between Australia and Europe (the “Europe Market”).

PARTICULARS

Various of the respondents or persons on their behalf identified the Europe Market as the market for international airfreight services between Australia and Europe in applications made to the Australian Competition & Consumer Commission for Australian Competition & Consumer Commission Authorisation Nos:

(i) A90565 dated 12 May 1995 (see in particular, sections 4.2 and 9.2);

31

8196443_11

(ii) A90649/A90655 dated 22 July 1998 (see in particular, sections 5.2 and 9.2);

(iii) A30202 dated 10 May 2000 (see in particular, section 6.2);

(iv) A30220/A30221/A30222/A90862/A90863 dated 9 September 2003 (see in particular, paragraphs 10.14 to 10.18 and 10.31); and

(v) A30226/20337 dated 8 February 2005 (see in particular, paragraphs 9.17, 9.115 and 9.116).



57.68. The Europe Market was a market within the meaning of section 4E of the TPA.

PARTICULARS

All international airfreight services between Australia and Europe described in those paragraphs included one or more of the Australian activities.


58.69. [Deleted]

New Zealand and Oceania Market



(a) any Australian hub and any New Zealand and Oceanian hub; further or alternatively


in New Zealand and Oceania,





(a) any Australian hub and any New Zealand and Oceanian hub; further or alternatively


in New Zealand and Oceania,

32

8196443_11





(a) supply international airfreight services between any Australian hub and any New

Zealand and Oceanian hub; further or alternatively


hub and any New Zealand and Oceanian hub for another route of carriage between

those two hubs; further or alternatively


hub and any New Zealand and Oceanian hub for another mode of carriage between



Australia and any point of origin or destination in New Zealand and Oceania; further

or alternatively


origin or destination in Australia and any point of origin or destination in New

Zealand and Oceania for another route of carriage between those two places; further

or alternatively


origin or destination in Australia and any point of origin or destination in New

Zealand and Oceania for another mode of carriage between those two places.



between Australia and New Zealand and Oceania (the “New Zealand and Oceania

Market”).

PARTICULARS

Various of the respondents or persons on their behalf identified the New Zealand and Oceania Market as the market for international airfreight services between Australia and New Zealand and Oceania in applications made to the Australian Competition & Consumer Commission for Australian Competition & Consumer Commission Authorisation Nos:

33

8196443_11







63.74. The New Zealand and Oceania Market was a market within the meaning of section

4E of the TPA.

PARTICULARS

All international airfreight services between Australia and New Zealand and Oceania described in those paragraphs included one or more of the Australian activities.


64.75. [Deleted]

Indian subcontinent and Middle East Market



(a) any Australian hub and any India subcontinent and Middle Eastern hub; further or

alternatively


in India subcontinent and Middle East,





34

8196443_11

(a) any Australian hub and any India subcontinent and Middle Eastern hub; further or

alternatively


in India subcontinent and Middle East,





(a) supply international airfreight services between any Australian hub and any India

subcontinent and Middle Eastern hub; further or alternatively


hub and any India subcontinent and Middle Eastern hub for another route of carriage

between any those two hubs; further or alternatively


hub and any India subcontinent and Middle Eastern hub for another mode of carriage

between those two hubs; further or alternatively


Australia and any point of origin or destination in India subcontinent and Middle

East; further or alternatively


origin or destination in Australia and any point of origin or destination in India

subcontinent and Middle East for another route of carriage between those two places;



origin or destination in Australia and any point of origin or destination in India

subcontinent and Middle East for another mode of carriage between those two

places.



35

8196443_11

between Australia and the Indian subcontinent and Middle East (the “Indian subcontinent

and Middle East Market”).

PARTICULARS

Various of the respondents or persons on their behalf identified the Indian subcontinent and Middle East Market as the market for international airfreight services between Australia and the Indian subcontinent and Middle East in applications made to the Australian Competition & Consumer Commission for Australian Competition & Consumer Commission Authorisation Nos:







69.80. The Indian subcontinent and Middle East Market was a market within the meaning

of section 4E of the TPA.

PARTICULARS

All international airfreight services between Australia and the Indian subcontinent and Middle East described in those paragraphs included one or more of the Australian activities.


70.81. [Deleted]

North and South America Market



(a) any Australian hub and any North and South American hub; further or alternatively


in North and South America,

36

8196443_11



72.83. By reason of the matters alleged in paragraphs 23, 24, 31 to 39 and 41, during the


(a) any Australian hub and any North and South American hub; further or alternatively


in North and South America,





(a) supply international airfreight services between any Australian hub and any North

and South American hub; further or alternatively


hub and any North and South American hub for another route of carriage between



hub and any North and South American hub for another mode of carriage between



Australia and any point of origin or destination in North and South America; further

or alternatively


origin or destination in Australia and any point of origin or destination in North and

South America for another route of carriage between those two places; further or

alternatively


origin or destination in Australia and any point of origin or destination in North and

South America for another mode of carriage between those two places.

37

8196443_11



between Australia and North and South America (the “North and South America

Market”).

PARTICULARS

Various of the respondents or persons on their behalf identified the North and South America Market as the market for international airfreight services between Australia and North and South America in applications made to the Australian Competition & Consumer Commission for Australian Competition & Consumer Commission Authorisation Nos:







75.86. The North and South America Market was a market within the meaning of section

4E of the TPA.

PARTICULARS

All international airfreight services between Australia and North and South America described in those paragraphs included one or more of the Australian activities.


76.87. [Deleted]

Africa Market



(a) any Australian hub and any African hub; further or alternatively

38

8196443_11


in Africa,





(a) any Australian hub and any African hub; further or alternatively


in Africa,



79.90. By reason of the matters alleged in paragraphs 23 to 33, 39 to 41, 88 and 89, during

the Period, each of the carriers could:

(a) supply international airfreight services between any Australian hub and any African

hub; further or alternatively


hub and any African hub for another route of carriage between those two hubs;



hub and any African hub for another mode of carriage between those two hubs;



Australia and any point of origin or destination in Africa; further or alternatively


origin or destination in Australia and any point of origin or destination in Africa for

another route of carriage between those two places; further or alternatively


origin or destination in Australia and any point of origin or destination in Africa for

another mode of carriage between those two places.

39

8196443_11



between Australia and Africa (the “Africa Market”).

PARTICULARS

Various of the respondents or persons on their behalf identified the Africa Market as the market for international airfreight services between Australia and Africa in applications made to the Australian Competition & Consumer Commission for Australian Competition & Consumer Commission Authorisation Nos:

(i) A30202 dated 10 May 2000 (see in particular, section 6.2);

(ii) A30220/A30221/A30222/A90862/A90863 dated 9 September 2003 (see in particular, paragraphs 10.14 to 10.18 and 10.31); and

(iii) A30226/20337 dated 8 February 2005 (see in particular, page 68).



81.92. The Africa Market was a market within the meaning of section 4E of the TPA.

PARTICULARS

All international airfreight services between Australia and Africa described in those paragraphs included one or more of the Australian activities.


82.93. [Deleted]

The Country Originated Markets

94. Further or alternatively to the markets pleaded in paragraphs 43 to 92 above there were

markets for the supply and acquisition of international airfreight services on Routes and

Return Routes between ports in particular countries and ports in other countries. These

included markets for the carriage of air freight originating in each of:

(a) Singapore;

(b) Hong Kong;

(c) Indonesia;

(d) the United Arab Emirates, or alternatively Dubai;

40

8196443_11

(e) Japan;

(f) the People’s Republic of China;

(g) Countries in Europe;

(h) New Zealand and Oceania;

(i) Countries in the Indian sub-continent and the Middle East;

(j) Countries in North and South America;

(k) Countries in Africa; and

(l) Australia.

95. The participants in those markets were customers, freight forwarders and carriers.

96. Each of the markets pleaded in paragraph 94 included ports inside Australia and each

market was a market in Australia within the meaning of section 4E of the TPA.

Australian Markets

97. In the alternative to paragraph 94, by reason of the matters alleged in paragraphs 23 to 42

inclusive, there were markets for the supply and acquisition of international airfreight

services to ports in Australia including from ports in each of:

(a) Singapore including via intermediate ports;

(b) Hong Kong including via intermediate ports;

(c) Indonesia including via intermediate ports;

(d) the United Arab Emirates, or alternatively Dubai including via intermediate ports;

(e) Japan including via intermediate ports;

(f) the People’s Republic of China including via intermediate ports;

(g) Countries in Europe, including via intermediate ports;

(h) New Zealand and Oceania, including via intermediate ports;

(i) Countries in the Indian sub-continent and the Middle East, including via

intermediate ports;

(j) Countries in North and South America, including via intermediate ports; and

(k) Countries in Africa including via intermediate ports.

41

8196443_11

98. The markets pleaded in paragraphs 94 and 97 above together are the “Country Originated

Markets”.

Competition in the Markets

83.99. At all times during the Period, all of the Respondents offered international airfreight

services by one or more of the means set out in paragraph 31(a) to (d).

84.100. At all times during the Period:

(a) two or more Respondents supplied, offered to supply or were willing and able to

treat to supply international airfreight services between Australia and at least those

points of origin or destinations set out in Schedule 2;

(b) [Deleted]

(c) each of the Respondents by themselves or bodies corporate related to them supplied,

offered to supply or were willing and able to treat to supply international airfreight

services between Australia and each of the hubs either on their own aircraft or by

interlining, airfreight alliances, codeshare agreements, marketing alliances or

integrated alliances; and

(d) further or alternatively, each of the Respondents by themselves or bodies corporate

related to them supplied, offered to supply or were willing and able to treat to supply

international airfreight services between Australia and each of the regions (other than

Australia); and

(e) further or alternatively, each of the Respondents by themselves or bodies corporate

related to them supplied, offered to supply or were willing and able to treat to supply

international airfreight services between ports in Australia and other ports in each of

the Country Originated Markets.

85.101. By reason of the matters alleged in paragraphs 99 and/or, further, paragraph 100, at

all times during the Period, each of the Respondents by themselves or bodies corporate

related to them:

(a) supplied; or

(b) were likely to have supplied; or

(c) but for the arrangements or understandings referred to below, would have:

42

8196443_11

(i) supplied; or

(ii) been likely to have supplied;

international airfreight services in competition with:

(d) one or more; further or alternatively

(e) each,

of the other Respondents or bodies corporate related to each of them in the Global Market.

86.102. Further or alternatively, by reason of the matters alleged in paragraphs 99 and/or,

further, paragraph 100, at all times during the Period, each of the Respondents by

themselves or bodies corporate related to them:

(a) supplied; or



(i) supplied; or


Australian international airfreight services in competition with:


(e) each,

of the other Respondents or bodies corporate related to each of them in the Australian

Global Market, further or alternatively, each of the SE Asia Market, North Asia Market,

Europe Market, New Zealand and Oceania Market, the Indian subcontinent and Middle

East Market, North and South America Market and Africa Market.

87.103. During the Period, each of the Respondents, by themselves or bodies corporate

related to them, supplied international airfreight services between any hub and any other

hub, further or alternatively, any place in a region to any other place in a region, further or

alternatively, Australia and each of;

(a) Africa;

(b) Europe;

43

8196443_11

(c) the Indian subcontinent and Middle East;

(d) New Zealand and Oceania;

(e) North and South America;

(f) North Asia; and

(g) South East Asia,

where at least part of the negotiation for purchase of, or entry into a contract for, the

services comprised a communication directed to or originating from Australia.


related to them, offered to supply international airfreight services between any hub and any

other hub, further or alternatively, any place in a region to any other place in a region,

further or alternatively, Australia and each of;

(a) Africa;

(b) Europe;




(f) North Asia; and


where at least part of the offer for purchase of, or entry into a contract for, the services

comprised a communication directed to or originating from Australia.


related to them, were willing and able to treat to supply international airfreight services

between any hub and any other hub, further or alternatively, any place in a region to any

other place in a region, further or alternatively, Australia and each of;

(a) Africa;

(b) Europe;


44

8196443_11



(f) North Asia; and


where at least part of the purchase of, or entry into a contract for, the services would

comprise a communication directed to or originating from Australia.

90. By reason of the matters alleged in paragraphs 99, 100, and 103 to 105, at all times during

the Period, each of the Respondents by themselves or bodies corporate related to them:

(a) supplied; or



(i) supplied; or


Australian international airfreight services in competition with:


(e) each,

of the other Respondents or bodies corporate related to each of them in each of the

Transactional Australian Global Market, Transactional SE Asia Market, Transactional

North Asia Market, Transactional Europe Market, Transactional New Zealand and

Oceania Market, the Transactional Indian subcontinent and Transactional Middle East

Market, Transactional North and South America Market and Transactional Africa Market.



(a) supplied; or



(i) supplied; or

45

8196443_11




(e) each,

of the other Respondents or bodies corporate related to each of them in the Transactional

Global Market.



(a) supplied; or



(i) supplied; or




(e) each,

of the other Respondents or bodies corporate related to each of them in the Country

Originated Markets.

92.107. By reason of the matters set out in paragraphs 101 and 106, at all times during the

Period, each Respondent by itself or a body or bodies corporate related to it was in

competition, within the meaning of section 45(3) of the TPA, with one or more, further or

alternatively all, of the other Respondents or bodies corporate related to each of them in

each or any of the Markets.

93.108. The matters set out in paragraphs 21 to 107 have continued since the end of the

Period and are continuing.

46

8196443_11

GLOBAL CARTEL ARRANGEMENT

94.109. [Deleted]

CONTEXT OF THE INFRINGING CONDUCT

110. In the second half of 1996, the price of aviation fuel rose substantially around the world.

111. On or about 25 October 1996, Lufthansa announced that from 1 November 1996 it would

levy across its entire freight network what it termed a “fuel surcharge” of USD 0.10, or the

equivalent in local currency, per kilogram of air cargo carried (the “1996 Surcharge”).

112. Lufthansa stated that the 1996 Surcharge would be dropped when the price of fuel returned

to the level of July 1996.

113. On or about 1 November 1996, Lufthansa commenced to levy the 1996 Surcharge.

114. On or shortly after 1 November 1996, a number of other carriers including Qantas,

Singapore Airlines, Air New Zealand and British Airways commenced to levy the 1996

Surcharge or an equivalent fuel surcharge on international air cargo either across their

entire networks or on particular Routes.

Resolution 116ss and the IATA Fuel Price Index

115. IATA is a carrier industry peak organisation the members of which include approximately

230 carriers, including each of the Respondents.

116. IATA members together account for more than 90% of scheduled international air traffic.

117. On 14 to 16 January 1997 a Special Composite Meeting of IATA Cargo Tariff

Coordinating Conferences was held in Geneva, Switzerland.

PARTICULARS

A. Each IATA Traffic Conference is mandated to concern itself with the analysis of relevant operating costs and take action to develop cargo rates and related conditions in respect of the area of authority of each Conference.

B. There are seven cargo conferences:

a. TC1 which has authority for cargo traffic within TC1;

b. TC2 which has authority for cargo traffic within TC2;

47

8196443_11

c. TC3 which has authority for cargo traffic within TC3;

d. TC12 which has authority for traffic between TC1 and TC2;

e. TC23 which has authority for traffic between TC2 and TC3;

f. TC31 which has authority for traffic between TC3 and TC1; and

g. TC123 which has authority for traffic between TC1 and TC3 via TC2.

C. A joint meeting of the IATA Cargo Tariff Coordinating Conferences is referred to as an IATA Composite Cargo Tariff Coordination Conference.

D. Paragraph 8 of the provisions for the conduct of IATA Traffic Conferences states:

A Composite meeting of Cargo Tariff Conferences shall take action on those matters and practices relating to rate construction and currency rules (other than those which by their own terms are applicable only to one Cargo Tariff Conference), remuneration levels of intermediaries engaged in the sale and/or processing of international air cargo and such other matters as may be referred to it by any Cargo Tariff Conference.

118. There was discussion at the meeting as to whether the members should pass a resolution

(“Resolution 116ss”) adopting a fuel surcharge index and related mechanisms for the

imposition of fuel surcharges in specified circumstances and for specified amounts.

PARTICULARS

A. The minutes of the IATA meeting on 14 – 16 January 1997 state inter alia that:

There was discussion as to whether the members should pass a resolution (ultimately known as Resolution 116ss) adopting a fuel surcharge index and related mechanism for the imposition of fuel surcharges in specified circumstances and for specified amounts.

B. The terms of the resolution were formulated in the course of the discussion.

C. Lufthansa raised a number of concerns in relation to the resolution and in order to alleviate some of these concerns, the IATA Director, Legal Department was invited to give his opinion. A summary of his remarks includes the following:

… Without any immunity, authorities regard with great suspicion any situation where competitors charge the same rate. In the event that there is any evidence whatsoever that competitors have had an opportunity to communicate in any way, and charge the same rate, there is a very strong assumption that they do so having colluded.

Until the particular approval is granted for any rate agreed at this conference, that situation would apply. In other words, in my opinion, any Airline which moves to charge the rate which is agreed at this conference before any government approval, and therefore antitrust immunity, is obtained, would face a very strong evidential presumption that the rate being charged had been

48

8196443_11

agreed between competitors and without antitrust immunity. The question is one of evidence.

D. Resolution 116ss was put to a vote. All members present except Lufthansa and Swissair voted in favour. The resolution failed.

E. Swissair later withdrew its negative vote but Lufthansa maintained its negative vote due “the legal implications the adoption of this Resolution would have on LH’s unilaterally established and applied fuel fee”.

119. On 3 March 1997 the Cargo Committee of IATA (“Cargo Committee”) met in Long

Beach California. At the meeting IATA formally advised participants that it had received

correspondence on 22 January 1997 from the European Commission regarding a complaint

by the European Air Shippers’ Council. The complaint alleged that IATA and its members

had unlawfully consulted, agreed and imposed non-negotiable fuel surcharges on shippers

in November 1996.

PARTICULARS

The Cargo Committee acts as advisor to the Board of Governors, the Director General, and other relevant IATA bodies on all air cargo industry policy issues, and develops policies/positions/action plans to resolve such issues in the areas of forwarder/carrier relations; cargo safety and security; cargo automation; cargo handling; cargo facilitation; cargo-related regulatory development and cargo quality standards.

120. On 10 April 1997 Lufthansa removed the 1996 Surcharge with effect from 15 April 1997

as fuel prices had returned to the level of July 1996.

121. Qantas discontinued its 1996 Surcharge during May 1997.

122. Shortly following the removal of the 1996 Surcharge, Lufthansa requested the

recirculation of Resolution 116ss to IATA members (including the Respondents) with

certain amendments. Resolution 116ss was passed by Mail Vote 875 in August 1997. The

effective date for Resolution 116ss was to be declared when all known necessary

government approvals were received.

PARTICULARS

A. Resolution 116ss, as passed, was relevantly in the following terms:

Whereas aviation fuel prices represent a significant portion of TC [Tariff Conference] Members’ operating costs.

Whereas minor fluctuations in fuel prices may be reasonably absorbed.

Whereas the need exists to react to significant changes in fuel costs in a rapid and orderly manner.

49

8196443_11

IT IS RESOLVED that,

1) the Secretary shall monitor average weekly spot prices of aviation fuel from published oil industry sources against the average prices of June 1996 of USD 0.535 per US Gallon (Index 100)

2) provided that the index equals or exceeds 130 on or after 1 October 1997 the charges contained in Attachment A shall apply.

3) a) in the event that the index subsequently is lower than 110 for a period of 2 consecutive weeks the Secretary shall advise TC Members that application of the charges in Attachment A shall be suspended

b) in the event that the index subsequently exceeds 130 for a period for 2 consecutive weeks the charges contained in Attachment A are reintroduced

4) in the event that, at any time, the index exceeds 150 for a period of 2 consecutive weeks, the Secretary shall convene in a special meeting of the Cargo Tariff Coordinating Conferences to review the amounts contained in Attachment A

5) any TC Member may file to amend the charge(s) or to introduce new charge(s) in Attachment A subject to the following conditions:

a) the filing shall be submitted to the Secretary providing reasons for the amendment or new charge and the intended effective date

b) upon receipt of such filing, the Secretary shall circulate the information to all CC Members

c) any voting TC Member of the Tariff Conference(s) concerned may protest the filing within 10 days, and to provide reasons and compromise proposals

d) filings not protested shall become effective on the date proposed and shall be incorporated into the agreement from such date, subject to applicable Government approval(s).

B. Attachment A to Resolution 116ss set out the methods of charging and documenting the fuel surcharge, as well as the amounts applicable from various countries and on various Routes, being primarily local currency equivalents of USD0.10/kg, but with lesser amounts applicable in some areas and on some Routes. The surcharge was specified as a charge applicable per kilogram on the chargeable weight (or actual weight if no chargeable weight was specified) of the consignment as shown in the Air Waybill.

123. At a further Composite Meeting of the Cargo Tariff Coordinating Conferences in Geneva,

Switzerland held between 4 and 8 May 1998:

(a) it was reported that Resolution 116ss could not be declared effective because of,

inter alia, a refusal by the United States Department of Transportation (the “US

DoT”) to accept the filing of the resolution unless accompanied by economic

justification based on current prices, which the carriers based in the USA were

unable to provide; and

(b) it was nonetheless resolved that the IATA Secretariat would continue to monitor

average weekly spot prices of aviation fuel from published oil industry sources, and

50

8196443_11

would publish this information to members, recording the prices as an index against

the average price in June 1996 of USD0.535 per US Gallon (index = 100) (the

“IATA Fuel Price Index”).

PARTICULARS

The meeting was chaired by Finemore, Qantas’ representative at IATA. The minutes record that Resolution 116ss was discussed and state:

… Mail Vote 875 could not be declared effective because of the outstanding approval of Argentina, India and USA (‘required governments’). The US DoT had advised that they would not accept filing of this Resolution for approval unless accompanied by economic justification based on current prices which the US carriers were unable to provide.

… The Chairman clarified that until such time as economic justification was provided to the US DoT, and that authority approved the Resolution, it would not be declared effective.

124. Between August 1997 and November 1999, the fuel price index calculated in accordance

with Resolution 116ss (the “IATA Fuel Price Index”) remained below 130.

125. IATA did not complete the required filing formalities with relevant governments,

including the US DoT for approval of Resolution 116ss.

126. IATA continued to publish the IATA Fuel Price Index to carriers and included Resolution

116ss in a rule book prepared by it, known as TACT Rule Book, as TACT Rule 4.8. This

practice continued until April 2000.

1999/2000: Implementing the IATA Fuel Price Index

127. On 29 December 1999 Lufthansa announced the introduction of a fuel surcharge following

Resolution 116ss. The surcharge was 0.10 euros, or the equivalent in local currency, on its

entire worldwide network with effect from 1 February 2000.

PARTICULARS

On 28 December 1999 Lufthansa published a document entitled 'Lufthansa Cargo News' which stated inter alia:

… the price [of fuel] has clearly exceeded the fuel index target recommended by the International Air Transport Association (IATA) in 1997 for implementing fuel surcharges. If this index, based on the fuel price in June 1996 as 100 per cent, rises above a ceiling of 130 per cent, IATA advises cargo Airlines of the possibility of counteracting rising fuel costs with a surcharge. The index, according to information from IATA - has currently reached a level of 136 per cent. Lufthansa Cargo will remove the fuel surcharge as soon as the IATA index falls below 110 per cent for two weeks running.

51

8196443_11

128. In about December 1999 the IATA Fuel Price Index exceeded 130 for two weeks.

129. In about January 2000, carriers including Qantas consulted with the home carriers at

airports in Australia, the United States and Europe as to what that home carrier was doing

about fuel surcharges.

130. In December 1999 or January 2000 each of Qantas, Lufthansa, Cathay Pacific and Air

New Zealand and other carriers including Air France, KLM, Alitalia, Emirates, Cargolux,

Korean Air, SAS, United Airlines, American Airlines, Polar Air and FedEx announced the

imposition of a fuel surcharge of USD0.10/kg or EUR0.10/kg, or the equivalent in local

currency, with effect from February or early March 2000.

131. At some particular locations, circumstances made it difficult to impose a fuel surcharge or

a surcharge in the full amount of the fuel surcharge. Those circumstances gave rise to

communications between carriers in order to implement the surcharge in the particular

location to the extent possible.

PARTICULARS

Those circumstances and communications are set out at paragraphs 175 to 217 below.

Request to US DoT

132. On 28 January 2000 IATA made a formal request to the US DoT to approve Resolution

116ss.

133. In about February 2000, Lufthansa commenced to publish the IATA Fuel Price Index on

its website.

134. On or about 14 March 2000, the US DoT refused to approve Resolution 116ss.

PARTICULARS

On 14 March 2000 the US DoT issued Order 2000-3-7 entitled 'Agreements adopted by the Tariff Coordinating Conferences of the International Air Transport Association relating to cargo rate matters'.

135. On 4 April 2000 the Cargo Committee met in Vancouver. At that meeting IATA

announced that its legal department had recommended that the publication of the IATA

Fuel Price Index should be suspended.

52

8196443_11

PARTICULARS

A. Minutes of the IATA Cargo Committee 14th Meeting, Vancouver, 4 April 2000.

B. The meeting was attended by Frampton (Qantas), representatives of Lufthansa, Japan Airlines and British Airways, and representatives of other carriers.

136. On or about 7 April 2000, IATA sent a memorandum to members participating in Cargo

Tariff Coordinating Conferences, announcing that the practice of circulating the IATA

Fuel Price Index would be discontinued.

137. On or about 14 April 2000, IATA sent a memorandum to members of the IATA Cargo

Committee, which contained statements to the effect that:

(a) IATA had received a significant number of requests to continue publishing the IATA

Fuel Price Index;

(b) the advice of IATA’s legal advisors was that IATA members could be exposed to

anti-trust liability if IATA continued to do so;

(c) if carriers were to coordinate pricing by reference to the IATA Fuel Price Index,

whether pursuant to Resolution 116ss or simply through de facto parallel pricing

actions, that could be regarded as an illegal conspiracy in violation of applicable

competition laws, whether the index was published by IATA, or by a third party, or

even if the index was calculated by carriers independently;

(d) IATA advised carriers against engaging in any pricing action tied to the index, or

approaching any third party to calculate or publish the index; and

(e) IATA had decided to discontinue all activity associated with Resolution 116ss,

including the calculation and dissemination of the IATA Fuel Price Index.

138. This correspondence was sent to the heads of cargo operations (members of the lATA

Cargo Committee) at over 60 carriers, including Qantas, Cathay Pacific and British

Airways along with their tariff co-ordinators (members of the Cargo Tariff Coordinating

Conference).

PARTICULARS

The memo was addressed to "Members, [IATA] Cargo Committee" and was sent to at least Qantas, Cathay Pacific and British Airways.

53

8196443_11

139. Cathay Pacific continued to impose fuel surcharges explicitly in accordance with

Resolution 116ss prior to 2002, including from Hong Kong, notwithstanding the matters

alleged in paragraphs 134 to 138 above.

FUEL SURCHARGE

95.140. On or about 1 January By the end of 2000 at the latest, each of the Respondents and

the Other Cartel Participants and each of them made an agreement or arrangement, or

reached an understanding with each other containing provisions that or to the effect that

each of them would:

(a) to the extent possible, impose surcharges attributed to higher fuel costs on all

international airfreight services, including Australian international airfreight

services, supplied, offered to be supplied or that could be supplied by each of them

(“fuel surcharges”);

(b) monitor and from time to time and agree on variations to the amount or application

of fuel surcharges;

(c) where local conditions prevented the imposition, or full imposition, of a fuel

surcharge from a particular airport or in a particular geographical area, to seek an

agreement, arrangement or understanding specific to that airport or area as to

imposing a fuel surcharge to the extent possible under those conditions; and

(c)(d) conceal the agreement, arrangement or understanding as in place from time to time

from the whole world including the Applicants and Group Members,

(“the Fuel Surcharge Arrangement”).

PARTICULARS

The Fuel Surcharge Arrangement was partly oral, partly in writing and partly to be implied.

In so far as it was oral, the Fuel Surcharge Arrangement was made at meetings of representatives of the Respondents and others, including meetings coinciding with IATA Cargo Tariff Coordinating Conferences.

In so far as it was in writing the Fuel Surcharge Arrangement includes:

1. the Lufthansa Fuel Price Index published on the Second Respondent’s website during the Period referred to below;

54

8196443_11

2. the British Airways World Cargo fuel index published on the BA’s website during the Period from October 2002 referred to below;

3. the JAL Cargo Fuel Surcharge Index published on the JAL’s website during the Period from October 2002 referred to below.

In so far as they were to be implied, the above provisions of the Fuel Surcharge Arrangement are to be implied:

4. from the matters alleged in paragraphs 141 to 170 below;

5. in the case of the provisions in paragraphs 140(a) and 140(b), from the conduct referred to in paragraphs 1.B, C, D, E, F and G of the particulars subjoined to paragraph 94;

(i) the admissions of Qantas in its 12 February 2007 Target Statement filed with the Australian Stock Exchange;

(ii) the admissions of BA in its 18 May 2007 preliminary annual report and in its 2006/2007 Annual Report & Accounts;

(iii) the admissions of BA to the US Department of Justice that it had conspired to suppress and eliminate competition by fixing the rates charged for carriage of airfreight to and from the USA, including airfreight carried between Australia and the USA; and

(iv) the admissions of the Deutsche Lufthansa Aktiengesellschaft, of which Lufthansa is a wholly owned subsidiary, contained in its Annual Report published September 2006; and

6. in the case of the provision in paragraph (cd), from the need to give business efficacy to the Fuel Surcharge Arrangement, as an arrangement which depended on secrecy for its efficacy.

Further particulars will be provided following the completion of discovery.

141. In order to facilitate and coordinate the imposition of the Fuel Surcharge Arrangement,

carriers adopted a practice, from at least 2000, whereby whenever a trigger point on the

Lufthansa Fuel Price Index (as defined in paragraph 143 below) was close to being

reached, carriers consulted with each other and gave and received assurances as to the

timing of variations, to ensure that implementation at the next level up or down was

coordinated.

PARTICULARS

A. From time to time, freight personnel from one or more levels within a carrier participating in the Fuel Surcharge Arrangement communicated to their counterparts, through bilateral or multilateral contacts, each carrier’s interest in imposing, or intention to impose, surcharges in accordance with a Surcharge Methodology. The purpose of these exchanges was to confirm that

55

8196443_11

the relevant carriers were adhering to the Fuel Surcharge Arrangement and to co-ordinate implementation.

B. From time to time carriers with lower shares of the cargo carried from a particular airport or region informed the competitor or competitors with the highest share in that airport or region that they would follow that competitor or competitors and enquired as to the timing and confirming the next level of proposed surcharge changes. Upon being so informed, the carriers with lower shares announced and made their own variations to fuel surcharges accordingly. This practice was known as following the home carrier or the home carrier rule. After time the practise evolved such the home carrier informed carriers of its intentions or made a public announcement, and the carriers followed, without the need for competitors to inform the home carrier on each occasion that they would follow.

C. Information regarding the approach of carriers’ head offices to fuel surcharge adjustments was exchanged during regular carrier meetings in various countries. These included the Singapore BAR CSC, the Hong Kong BAR CSC and the ACRB in Indonesia.

Lufthansa Fuel Index

96.142. Further, iIn about February 2000, Lufthansa introduced and subsequently charged a

fuel surcharge imposed solely by reference to the weight of airfreight to be transported.

PARTICULARS

The quantum of Lufthansa’s fuel surcharge as at February 2000 is known by the Respondents. Particulars will be provided after discovery.

97.143. From about February 2000 Lufthansa calculated a number called “the Lufthansa Fuel

Index” (the “Lufthansa Fuel Index”) based on the average price of aviation fuel in five

spot markets:

(a) Rotterdam;

(b) Mediterranean;

(c) Far East Singapore;

(d) US Gulf; and

(e) US West Coast.

98.144. From about February 2000, whenever the Lufthansa Fuel Index exceeded or fell

below a specific benchmark for two weeks, Lufthansa increased or decreased respectively

its fuel surcharge in specified increments (“the Lufthansa adjustment mechanism”).

56

8196443_11

99.145. During the Period from about February 2000, Lufthansa published to the world and

in particular to each of the Respondents:

(a) the Lufthansa Fuel Index;

(b) the method by which the Lufthansa Fuel Index was calculated;

(c) the Lufthansa adjustment mechanism; and

(d) its current fuel surcharge.

PARTICULARS

The matters referred to in (a) to (d) above were published on Lufthansa’s website during the Period.

100.146. After February 2000, Lufthansa adjusted its fuel surcharge in accordance with the

Lufthansa adjustment mechanism, including as follows:

57

8196443_11

Effective Date Fuel Surcharge (Euro per kg)

1 Feb 2000 0.10

1 November 2000 0.17

Dec 2001 0.05

23 Sep 2002 0.10

6 MarFeb 2003 0.15

24 Mar 2003 0.20

21 Apr 2003 0.15

6 May 2003 0.10

18 Dec 2003 0.15

10 May 2004 0.20

7 June 2004 0.25

Sep 2004 (announced then suspended) 0.30

25 Oct 2004 0.35

3 Jan 2005 0.30

21 Mar 2005 0.35

4 April 2005 0.40

11 July 2005 0.45

5 Sep 2005 0.50

17 Oct 2005 0.55

24 Oct 2005 0.60

21 Nov 2005 0.55

28 Nov 2005 0.50

5 Dec 2005 0.45

20 Feb 2006 0.50

8 May 2006 0.55

15 May 2006 0.60

101.147. In February 2000, the Respondents other than Lufthansa introduced and

subsequently charged fuel surcharges at agreed levels agreed by them imposed by

reference to the weight of the airfreight to be transported, and on each occasion that they

did so they gave effect to the Fuel Surcharge Arrangement.

102.148. During the Period, shortly after Lufthansa had announced an adjustment to its fuel

surcharge, each Respondent and Other Cartel Participant:

(a) adjusted its fuel surcharge in corresponding increments; or otherwise

(b) increased the price of its international airfreight services by a corresponding amount.

58

8196443_11

149. During 2000 Qantas also circulated its own version of an index which mirrored the

Lufthansa Adjustment Mechanism to its customers in Australia.

150. In or about late September 2000:

(a) The Lufthansa Index had exceeded 170 for two consecutive weeks;

(b) Lufthansa announced that it would increase its fuel surcharge to 0.17 euros or the

equivalent in local currency with effect from 1 November 2000;

(c) Other Respondents including Qantas, Cathay Pacific and Air New Zealand as well as

other Airlines including Polar Air Cargo, Cargolux, Scandinavian Airlines, China

Airlines, United Airlines, Air France, Swissair, Northwest Airlines, Eva Air, Alitalia,

Air Canada, Malaysia Airlines, Emirates, Martinair and KLM also announced an

increase in or the introduction of the fuel surcharge at about this time and thereafter

imposed the surcharge;

(d) British Airways announced the introduction of a fuel surcharge at this time of 0.07

pounds. British Airways subsequently announced an increase in the surcharge to

0.10 pounds on 1 December 2000; and

(e) Singapore Airlines increased the general air freight rates they offered by an

equivalent amount to the fuel surcharge instead of imposing a separate fuel

surcharge.

151. Where a carrier did not simply apply the Lufthansa Adjustment Mechanism, it formulated

its own methodology, which led to substantially the same outcome.

Lufthansa Methodology in 2002

152. On or about 23 January 2002, Lufthansa announced a revision to the Lufthansa

Adjustment Mechanism providing for smaller surcharge increments at revised index levels.

The trigger points, and corresponding surcharges, under the revised methodology (the

“Lufthansa Methodology”) were:

59

8196443_11

Level Fuel Surcharge Imposition - Index Removal – Index

1 EUR/USD0.05/kg 115 100

2 EUR/USD0.10/kg 135 120

3 EUR/USD0.15/kg 165 145

4 EUR/USD0.20/kg 190 170

The Lufthansa Methodology otherwise preserved the features of the Lufthansa Adjustment

Mechanism.

153. At various times between May 2004 and October 2005, Lufthansa added additional levels

to the Lufthansa Methodology as the fuel index approached the highest level on the then

existing methodology (“Additional Levels”). The following table records the Lufthansa

Methodology, incorporating the Additional Levels (EUR/USD /kg):

Level Fuel Surcharge Imposition - Index Removal – Index

1 0.05 115 100

2 0.10 135 120

3 0.15 165 145

4 0.20 190 170

5 0.25 215 195

6 0.30 240 220

7 0.35 265 245

8 0.40 290 270

9 0.45 315 295

10 0.50 340 320

11 0.55 365 345

12 0.60 390 370

13 0.65 415 395

14 0.70 440 420

PARTICULARS

Lufthansa announced additional trigger points:

A. for levels 5 and 6 on 14 May 2004;

B. for levels 7 and 8 on 20 September 2004;

C. for levels 9 and 10 on 21 March 2005;

D. for levels 11 and 12 on 22 August 2005; and

E. for levels 13 and 14 on 4 October 2005.

60

8196443_11

Other Methodologies

154. From January 2002 other carriers imposed fuel surcharges in accordance with the

Lufthansa Methodology.

155. Other carriers adopted their own fuel surcharge methodologies which were the same or

substantially the same in operation as the Lufthansa Methodology (together with the

Additional Levels as and when they were announced).

PARTICULARS

The carriers which published separate yet substantially similar fuel surcharge methodologies included Air France, Emirates, KLM and British Airways.

156. Commencing in or about April 2002, carriers including each of the Respondents (except

Singapore Airlines) and other Airlines imposed fuel surcharges in accordance with one of

the surcharge methodologies in paragraphs 143 to 155 above and 162 to 169 (each a

“Surcharge Methodology”). The imposition was across their global networks, including

into and out of Australia, except where local conditions prevented the imposition, or full

imposition, of a fuel surcharge from a particular airport or in a particular geographic area.

157. All of the Surcharge Methodologies shared certain features with Resolution 116ss

including:

(a) the fuel surcharge was non-commissionable (that is freight forwarders were not

entitled to a commission upon it) and based on actual weight of the cargo consigned;

(b) the fuel price used as the basis of the Fuel Price Indices was based on the average of

spot prices of aviation fuel in nominated markets;

(c) the Fuel Price Indices had agreed trigger points;

(d) each time the Fuel Price Indices exceeded a trigger point for an agreed period, that

is, a period of two consecutive weeks, charges were introduced or adjusted;

(e) the fuel surcharge was to be shown in the Other Charges box on the Air Waybill,

identified by a charge code (codes used included FSC, FSH, MYC and MY), with

the total surcharge amount reflected in the Total Other Charges Due Carrier box;

(f) in most countries, the fuel surcharge was to be levied in increments equivalent to

USD0.10; and

(g) that no regard was had to:

61

8196443_11

(i) changes (if any) in the actual fuel cost to carriers;

(ii) Routes serviced by dedicated freighters not passenger aircraft;

(iii) the type of aircraft and rate of fuel burn on particular Routes;

(iv) different fuel hedging policies and fuel hedging positions of particular carriers;

or

(v) fluctuations in currency exchange rates.

158. In Hong Kong, Singapore Airlines Cargo informed the other members of the BAR Cargo

Sub-Committee that it would not introduce a fuel surcharge but would increase its rates by

the same amount as the fuel surcharge to be effective from the same date the fuel

surcharge would be imposed.

159. As Lufthansa added Additional Levels, the carriers utilising their own methodologies

likewise added equivalent levels to their methodologies and thus extended the Surcharge

Methodology to include the Additional Levels.

160. As Additional Levels were added, the participants in the Fuel Surcharge Arrangement

including the Respondents continued to impose fuel surcharges in accordance with thea

Surcharge Methodology incorporating the Additional Levels, and thus extended the

understanding to include each of the Additional Levels by continuing to give effect to the

Fuel Surcharge Arrangement with the Additional Levels.

161. During the relevant period fuel surcharges or, in some cases, equivalent adjustments in

rates, were implemented by carriers including the Respondents pursuant to the Fuel

Surcharge Arrangement in countries and regions including Australia, New Zealand,

Europe and the United Kingdom, South Africa, Hong Kong, the Americas, Singapore,

Thailand, Japan and Indonesia.

103.162. Further or alternatively, fFrom on or about January 2002, BA calculated a number

called “the British Airways World Cargo Fuel Index” (the “British Airways World

Cargo Fuel Index”) based on the average price of aviation fuel in four spot markets:

(a) North West Europe;

(b) Singapore;

(c) US Gulf; and

62

8196443_11

(d) Los Angeles.

104.163. From about March 2002 whenever the British Airways World Cargo Fuel Index

exceeded or fell below a specific benchmark for two weeks, BA increased or decreased

respectively its fuel surcharge in increments equivalent to approximately 0.05 Euro (“the

BA adjustment mechanism”) as follows:.

FSC Level Announcement Date Trigger Point Implementation Date BA FSC (EURcurrency/kg)

1 28 March 2002 125 22 April 2002 0.05

2 6 September 2002 145 23 September 2002 0.10

3 13 February 2003 175 2 March 2003 0.15

4 13 March 2003 200 27 March 2003 0.20

3 10 April 2003 175 24 April 2003 0.15

2 24 April 2003 145 8 May 2003 0.10

3 4 December 2003 175 18 December 2003 0.15

4 29 April 2004 200 13 May 2004 0.20

5 27 May 2004 225 10 June 2004 0.25

5 9 September 2004 250 See note 1 below 0.25

6 23 September 2004 250 7 October 2004 0.30

7 14 October 2004 280 28 October 2004 0.35

6 23 December 2004 250 6 January 2005 0.30

7 10 March 2005 280 24 March 2005 0.35

8 24 March 2005 310 7 April 2005 0.40

9 30 June 2005 335 14 July 2005 0.45

10 25 August 2005 360 8 September 2005 0.50

10 15 September 2005 385 See note 2 below 0.50

11 6 October 2005 385 20 October 2005 0.55

12 13 October 2005 410 27 October 2005 0.60

11 10 November 2005 385 24 November 2005 0.55

10 17 November 2005 360 1 December 2005 0.50

9 24 November 2005 335 8 December 2005 0.45

10 2 February 2006 360 16 February 2006 0.50

105.164. BA calculated the British Airways World Cargo Fuel Index and adjusted its fuel

surcharge using the BA adjustment mechanism for the purpose that its fuel surcharge:

(a) would be substantially the same in amount and timing as the Lufthansa Adjustment

Mechanism; and

(b) would move and with the effect that its fuel surcharge did move correspondingly

with the movements of the fuel surcharges of other Respondents.

63

8196443_11

106.165. During the Period from about March 2002, BA published to the world and in

particular to each of the Respondents:

(a) the British Airways World Cargo Fuel Index;

(b) the method by which the British Airways World Cargo Fuel Index was calculated;

(c) the BA adjustment mechanism; and


PARTICULARS

The matters referred to in (a) to (d) above were published on the BA’s website during the Period.

107.166. Further or alternatively, fFrom in or about October 2002, JAL calculated a number

called “the JAL Cargo Fuel Surcharge Index” (the “JAL Cargo Fuel Surcharge Index”)

based on the average price of aviation fuel in Singapore.

108.167. From about October 2002, whenever the JAL Cargo Fuel Surcharge Index exceeded

or fell below a specific benchmark for 20 days JAL increased or decreased respectively its

fuel surcharge in increments equivalent to approximately 0.05 Euro (“the JAL

adjustment mechanism”).

109.168. JAL calculated the JAL Cargo Fuel Surcharge Index and adjusted its fuel surcharge

in the manner referred to in the previous paragraph for the purpose that its fuel surcharge

would move and with the effect that its fuel surcharge did move correspondingly with the

movements of the fuel surcharges of other Respondents.

110.169. From about October 2002, JAL published to the world and in particular to each of

the Respondents:

(a) the JAL Cargo Fuel Surcharge Index;

(b) the method by which the JAL Cargo Fuel Surcharge Index was calculated;

(c) the JAL adjustment mechanism; and


PARTICULARS

The matters referred to in (a) to (d) above were published on the JAL’s website during the period.

64

8196443_11

111.170. From on or about 1 January 2000 to in or about February 2006, the Respondents

(including Singapore Airlines until 30 June 2001 and Singapore Airlines Cargo from 1

July 2001) and each of them have:

(a) supplied or offered to supply Australian international airfreight services to customers

in Australia subject to payment by those customers of the fuel surcharges;

(b) supplied or offered to supply Australian international airfreight services to customers

subject to the payment of the fuel surcharges regardless of where those surcharges

would be paid or by whom those surcharges would be paid; and

(c) concealed the existence and terms of the Fuel Surcharge Arrangement from the

whole world including the Applicants and Group Members.

PARTICULARS

The Applicants refer to and repeat each of the allegations made in paragraphs 141 to 169. Further particulars of each supply and offer to supply may be provided after discovery.

The publicationcolourable objective use of the Lufthansa Fuel Index, the British Airways World Cargo Fuel Index and the JAL Cargo Fuel Surcharge Index to quantify the fuel surcharges to be imposed by Respondents and Other Cartel Participants operated to conceal the Fuel Surcharge Arrangement.

112.171. The supplies referred to in paragraphs 170(a) and 170(b) included one or more of

the Australian activities and the offers to supply referred to in paragraphs 170(a) and

170(b) were:

(a) made in Australia; further or alternatively

(b) addressed to persons in Australia; further or alternatively

(c) intended by the Respondents to be received by persons in Australia; further or

alternatively

(d) received in Australia.

113.172. By reason of the preceding paragraph, the Respondents and each of them engaged in

the conduct referred to in paragraph 170(a) and 170(b) in Australia within the meaning of

the TPA.

114.173. The concealment referred to in paragraph 170(c) was conduct, by the Respondents

and each of them in Australia within the meaning of the TPA by:

65

8196443_11

(a) reason of that concealment comprising an omission to inform persons in Australia of

the matters concealed; further or alternatively;

(b) publishing in Australia material which did not disclose the matters concealed.

PARTICULARS

The material includes the Lufthansa Fuel Index, the British Airways World Cargo Fuel Index, the JAL Cargo Fuel Surcharge Index and each Respondent’s annual (or other periodical) company reports as published in Australia by way of the internet. Further particulars of the material and publication will be provided after discovery.

115.174. The Respondents and each of them engaged in the conduct alleged in paragraph 140

to 170, to the extent conduct is alleged against each of them, pursuant to the Fuel

Surcharge Arrangement.

Local Understandings

175. In giving effect to the Fuel Surcharge Arrangement, there were exceptions to the

imposition by the Respondents of fuel surcharges in accordance with a Surcharge

Methodology in cases where local conditions prevented the imposition of a surcharge (or

the full and/or immediate imposition of that surcharge) from a particular airport or in a

particular geographic area.

176. In those conditions the Respondents took steps to impose the surcharge to the extent

possible, including though bilateral and multilateral contacts between carriers to confirm

or propose an alternative approach.

177. Where a local law or regulation required fuel surcharges to be approved by a local

government department, the Respondents took steps to adhere as closely as possible to the

Fuel Surcharge Arrangement, including by;

(a) attending meetings of carrier representatives to formulate joint proposals to be put to

the relevant government authorities;

(b) agreeing upon joint proposals to be put to the relevant government authorities for

permission to implement a fuel surcharge, or an increase in a fuel surcharge, in

amounts and from commencement dates agreed between the carriers; and

(c) agreeing with other carriers to impose surcharges in accordance with the joint

proposals.

66

8196443_11

178. These arrangements were required from time to time in each of:

(a) Singapore;

(b) Indonesia;

(c) Hong Kong; and

(d) Japan.

Singapore

179. From at least 1998, the Respondents (including Singapore Airlines (until July 2001) and

Singapore Airlines Cargo (from July 2001)) were all members of the Singapore BAR-

CSC.

180. The Singapore BAR-CSC was chaired by a representative of Singapore Airlines (until July

2001) and Singapore Airlines Cargo (from July 2001).

181. On 3 February 2000, at a Singapore BAR-CSC meeting which was chaired by Singapore

Airlines, attending carriers exchanged information regarding fuel surcharge

implementation.

182. From no later than April 2002 until at least 31 December 2004, it was the practice of

Singapore Airlines Cargo, prior to the announcement of any increase in the fuel surcharge

to be imposed on the supply of international airfreight services from Singapore, to:

(a) contact or call a meeting with its competitors, including each of the other

Respondents;

(b) inform its competitors, including each of the other Respondents of the amount and

timing of the proposed increase; and

(c) seek advice from the members of the Singapore BAR-CSC, including each of the

other Respondents as to whether they would increase the fuel surcharge imposed on

the supply of international airfreight services from Singapore, and, if so, the amount

and timing of the increase.

183. From no later than April 2002 until at least 31 December 2004, it was the practice of

Singapore Airlines Cargo, following its announcement of any increase in the fuel

surcharge to be imposed on the supply of international airfreight services from Singapore

by Singapore Airlines and other carriers, to:

67

8196443_11

(a) seek confirmation from members of the Singapore BAR-CSC, including each of the

other Respondents of the amount and timing of the fuel surcharge actually imposed;

(b) collate the information so obtained; and

(c) advise the members of the Singapore BAR-CSC, including each of the other

Respondents of the fuel surcharge increases notified by each member of the

Singapore BARCSC which advised Singapore Airlines of the fuel surcharge increase

actually implemented.

Singapore Understanding

184. By reason of the matters alleged in paragraphs 182 to 183, at a time unknown to the

Applicants but at least by a date between September 2002 and December 2005 each of the

Respondents or any one of them made an arrangement or arrived at an understanding (the

“Singapore Understanding”) with Singapore Airlines (before July 2001) and/or

Singapore Airlines Cargo (after July 2001) and the other members of the Singapore BAR-

CSC containing one or more of the following provisions:

(a) the parties would discuss or otherwise notify their intentions, including by attending

meetings or otherwise, to impose or modify a fuel surcharge on the supply of

international airfreight services from Singapore;

(b) Singapore Airlines Cargo would advise each of the other Respondents and the other

carriers party to the Singapore Understanding prior to implementing a change to the

fuel surcharge which it intended to charge its Customers for the supply of

international airfreight services from Singapore with a commencement date that

would allow enough lead time for the other carriers to announce their changes before

the change by Singapore Airlines was implemented;

(c) after Singapore Airlines Cargo so advised, each of the other Respondents and the

other carriers party to the Singapore Understanding would:

(i) advise Singapore Airlines Cargo of their attitude to the pricing proposal,

including whether they considered it would be unprofitable for the parties to

implement the proposed change or certain aspects of the proposed change; and

(ii) advise their own intentions;

68

8196443_11

(d) Singapore Airlines Cargo would impose the fuel surcharge referred to in

subparagraph (b) in the amount specified and from the date specified unless it

advised the other carriers party to the Singapore Understanding to the contrary;

(e) where Singapore Airlines Cargo advised the other carriers party to the Singapore

Understanding that it intended to implement an increase in the fuel surcharge as

alleged in subparagraph (b), then each of the other carriers, including each of the

Respondents, would increase the fuel surcharge that it charged its Customers:

(i) at or about the time or times that Singapore Airlines Cargo stated it would

increase its fuel surcharge; and

(ii) by an amount not substantially less than the amount of the increase advised by

Singapore Airlines Cargo;

(f) the carriers party to the Singapore Understanding, including each of the

Respondents, would not reduce the amount that they were charging their Customers

for the fuel surcharge to an amount substantially below the amount being charged by

Singapore Airlines Cargo without advising Singapore Airlines Cargo of their

intention to do so; and

(g) where a carrier, including one of the other Respondents advised Singapore Airlines

Cargo of the amount of the fuel surcharge that it intended to charge from Singapore

and the date of implementation, that carrier would impose a fuel surcharge of that

amount and from that date unless it advised Singapore Airlines Cargo to the

contrary.

PARTICULARS

Particulars of the Singapore Understanding and its implementation are contained in Schedule C - Singapore Understanding.

185. From at least:

(a) 1 October 2002 until on or about 10 September 2005 in the case of Qantas;

(b) 23 September 2002 until on or about 5 September 2005 in the case of Lufthansa;

(c) 12 December 2003 until on or about 26 August 2005 in the case of Cathay Pacific;

(d) 8 December 2003 until on or about 30 October 2005 in the case of Air New Zealand;

(e) 1 October 2002 until on or about 8 September 2005 in the case of British Airways

69

8196443_11

each of those carriers gave effect to the provisions of the Singapore Understanding by

changing the fuel surcharge it charged its Customers for international airfreight services

from Singapore:

(i) at about the times that Singapore Airlines Cargo changed its fuel surcharge;

and

(ii) by amounts not substantially less than the amount of the change proposed to be

charged by Singapore Airlines Cargo.

PARTICULARS

The changes to the fuel surcharge from Singapore implemented by the Respondents include those summarised in the following table (amounts are in SGD/kg):

70

Qantas Lufthansa Cathay Pacific Singapore Airlines Cargo Air New Zealand British Airways

Announce/

implement

date

TC1,

TC2

TC3 Announce/

implement

date

TC1, TC2

TC3 Announce/ implement date

TC1, TC2

TC3 including Nth Asia

Announce/ implement date

TC1, TC2

Nth Asia

TC3 S.E. Asia


TC1, TC2

TC3 incl N.Asia

S E Asia

Announce/

implement

date

TC1, TC2

TC3

10 Sep 02 / 1 Oct 02

0.17 0.17 6 Sep 02 / 23 Sep 02

0.17 0.17 23 Sep 02 / 1 Oct 02

0.17 0.10 12 Sep 02 / 1 Oct 02

0.17 0.17 0.17 0.17 23 Sep 02 / 1 Oct 02

0.17 0.17 0.17 16 Sep 02/1 Oct 02

0.17 0.17

5 Mar 03 / 17 Mar 03

0.25 0.25 19 Feb 03 / 3 Mar 03

0.28 0.28 14 Feb 03 / 1 Mar 03

0.25 0.15 14 Feb 03 / 1 Mar 03

0.25 0.25 0.25 0.20 25 Feb 03 / 1 Mar 03

0.25 0.25 0.20 4 Mar 03 / 17/3/03

0.25 0.25

21 Mar 03 / 7 Mar 03

0.38 0.38 11 Mar 02 / 24 Mar 03

0.38 0.38 24 Mar 03 /7 Apr 03

0.38 0.22 13 Mar 03 /19 Mar 03

0.38 0.38 0.38 0.25 26 Mar 03 / 7 Apr 03

0.38 0.38

11 Apr 03 / 22 Apr 03

28 Apr 03 / 1 May 03

0.25

0.17

0.25

0.17

8 Apr 03 / 21 Apr 03

24 Apr 03 / 6 May 03

0.28

0.19

0.28

0.19

21 Apr 03 /1 May 03

0.17 0.10 unknown/ 16 Apr 03

0.17 0.17 0.17 0.25 14 Apr 03/ 16 Apr 03

0.17 0.17 0.17 14Apr 03 / 24 Apr 03

25 Apr 03 / 8 May 03

0.25

0.17

0.25

0.17

12 Dec 03 / 23 Dec 03

0.25 0.25 5 Dec 03 /18 Dec 03

0.31 0.31 12 Dec 03/ 1 Jan 04

0.25 0.15 9 Dec 03 / 23 Dec 03

0.25 0.25 0.20 0.17 15 Dec 03 /23 Dec 03

0.25 0.20 0.20 4 Dec 03 / 18 Dec 03

0.27 0.27

4 May 04 / 12 May 04

0.35 & Nth Asia

0.25 27 Apr 04 / 10 May 04

0.40 0.40 30 Apr 04 /16 May 04

0.35 0.20 28 Apr 04 / 12 May 04

0.35 0.35 0.20 0.20 10 May 04 /16 May 04

0.35 0.20 0.20 29 Apr 04 / 13 May 04

0.36 0.36

8 Oct 04 / 16 Oct 04

0.50 & Nth Asia

0.30 21 Sep 04/ 4 Oct 04

0.62 0.62 30 Sep 04 /11 Oct 04

0.50 0.25 27 Sep 04 / 11 Oct 04

0.50 0.50 0.25 0.20 1 Oct 04 / 16 Oct 04

0.50 0.25 0.25

Unknown/1 Nov 04

1 Nov 04 / 16 Nov 04

0.60 & Nth Asia

0.70 & Nth Asia

0.40

0.50

12 Oct 04 / 25 Oct 04

0.73 0.73 26 Oct 04 /16 Nov 04

0.60 0.30 21 Oct 04 / 5 Nov 04

0.60 0.50 0.30 0.25 unknown/ 5 Nov 04

0.60 0.30 0.30 20 Oct 03 / 1 Nov 04

29 Oct 04 / 16 Nov 04

0.60

0.70

0.60

0.60

71

8196443_11

Qantas Lufthansa Cathay Pacific Singapore Airlines Cargo Air New Zealand British Airways

Announce/

implement

date

TC1,

TC2

TC3 Announce/

implement

date

TC1, TC2

TC3 Announce/ implement date

TC1, TC2

TC3 including Nth Asia


TC1, TC2

Nth Asia

TC3 S.E. Asia


TC1, TC2

TC3 incl N.Asia

S E Asia

Announce/

implement

date

TC1, TC2

TC3

Unknown/1 Jan 05

Unknown / 16 Jan 05

0.60 & Nth Asia

0.50 & Nth Asia

0.40

0.25

21 Dec 04 / 3 Jan 05

0.66 0.66 28 Dec 04/ 16 Jan 05

0.50 0.25 22 Dec 04 / 3 Jan 05

0.50 0.40 0.25 0.25 unknown/ Jan 05

0.50 0.25 0.25 31 Jan 05 / 1 Feb 05

0.60 0.25

Unknown / 10 Apr 05

0.50 & Nth Asia

0.30 8 Mar 05 / 21 Mar 05

0.75 0.75 24 Mar 05 / 7 Apr 05

0.60 0.45 0.30 1 Apr 05 / 16 Apr 05

0.60 0.30 0.30

Unknown / 13 July 05

0.75 & Nth Asia

0.35 28 Jun 05 / 11 Jul 05

0.92 0.92 30 Jun 05/ 16 Jul 05

0.75 0.4 29 Jun 05 / 13 Jul 05

0.75 0.50 0.35 6 Jul 05 / 16 Jul 05

0.70 0.35 0.35 7 Jul 05 / 14 Jul 05

0.75 0.35

29 Aug 05 / 10 Sep 05

0.90 & Nth Asia

0.45 23 Aug 05/5 Sep 05

1.02 1.02 29 Aug 05 /16 Sep 05

0.85 0.45 24 Aug 05 / 6 Sep 05

0.90 0.55 0.35 29 Aug 05 /16 Sep 05

0.90 0.35 0.35 6 Sep 05 / 8 Sep 05

0.90 0.45

72

186. On each occasion that it imposed a fuel surcharge as set out in Schedule C each

Respondent gave effect to a provision of the Singapore Understanding.

Indonesia

187. From at least 2001, each of Qantas, Lufthansa, Singapore Airlines (until July 2001) and

Singapore Airlines Cargo (from July 2001), Cathay Pacific and British Airways were

members of the Air Cargo Representative Board – Indonesia (“ACRB – Indonesia”).

Indonesia Understanding

188. Further or alternatively, at a time or times unknown to the Applicant but by no later than 9

May 2003, each of Qantas, Lufthansa, Cathay Pacific, Singapore Airlines Cargo and

British Airways made an arrangement or arrangements or arrived at an understanding or

understandings with a number of other Airlines including the home carrier Garuda (the

“Indonesia Understanding”), containing the following provisions or one or more of

them:

(a) Garuda would advise the other carriers party to the Indonesia Understanding,

including each of Qantas, Lufthansa, Singapore Airlines Cargo, Cathay Pacific and

British Airways alternatively the parties would meet and discuss or otherwise

communicate with each other concerning each carrier’s ability and intention to

impose fuel surcharges on its Customers, including the amount and timing of the

surcharge, prior to implementing a change to the fuel surcharge which it charged its

Customers for the supply of international airfreight services from Indonesia that

would allow enough lead time for the other parties to announce similar changes

before the change was implemented;

(b) where Garuda advised the other carriers party to the Indonesia Understanding that it

intended to implement an increase in the fuel surcharge as alleged in paragraph

188(a), then each of the other parties, including each of Qantas, Lufthansa,

Singapore Airlines Cargo, Cathay Pacific and British Airways would maintain or

increase the fuel surcharge that it charged its Customers:

(i) at or around the time or times that Garuda stated it would increase its fuel

surcharge; and

(ii) by an amount not substantially less than the amount of the increase advised by

Garuda;

73

8196443_11

(c) the carriers party to the Indonesia Understanding would not reduce the amount that

they were charging their Customers for the fuel surcharge to an amount below the

amount being charged by Garuda without advising the other carriers of its intention

to do so; and

(d) where a carrier that was party to the Indonesia Understanding had advised the other

parties of the amount of the fuel surcharge that it intended to charge from Indonesia

and the date of implementation, that carrier was expected to and did impose a fuel

surcharge of that amount and from that date unless it advised the other parties to the

contrary.

PARTICULARS

Particulars of the Indonesia Understanding and its implementation are contained in Schedule D – Indonesia Understanding.

189. Each of Qantas, Lufthansa, Singapore Airlines Cargo, Cathay Pacific and British Airways

gave effect to one or more of the provisions of the Indonesia Understanding by:

(a) increasing the fuel surcharge that it charged its Customers for the supply of

international airfreight services from Indonesia:

(i) at or around the time or times that Garuda announced it would increase its fuel

surcharge; and

(ii) by an amount not less than the amount of the increase advised by Garuda;

(b) not decreasing the amount that it would charge its Customers for the fuel surcharge

to an amount below the amount being charged by Garuda;

(c) imposing the fuel surcharges in the amount and on the dates that it advised the other

members of the ACRB – Indonesia;

PARTICULARS

The amounts charged by Garuda and each of Qantas, Lufthansa, Singapore Airlines Cargo, Cathay Pacific and British Airways for the fuel surcharge on the supply of international airfreight services from Indonesia from October 2002 to December 2005 include those summarised in the following table (dates are implementation dates, amounts are in USD/kg):

74

Garuda Qantas Lufthansa Singapore Airlines Cargo Cathay Pacific British Airways

Date TC1, TC2

TC3 Date TC1, TC2

TC3 Date TC1, TC2

TC3 Date TC1, TC2

TC3 (excl Japan)

Date TC1, TC2

TC3 (excl Japan)

Date TC1, TC2

TC3 (excl Japan)

1 Oct 02 0.10 0.05 (excl Japan)

1 Oct 02 0.10 0.10 23 Sep 02 0.10 0.10 1 Oct 02 0.10 0.05 1 Oct 02 0.10 0.05

12 May 03 0.10 0.05 (excl Japan)

22 Apr 03

1 Aug 03

23 Dec 03

12 May 04

0.15

0.10

0.15

0.20

0.15

0.10

0.15

0.20

6 May 03

7 Jun 04

0.10

0.25

0.10

0.25

12 May 03

16 June 04

0.10

0.15

0.05

0.05

12 May 03

16 May 04

0.10

0.20

0.05

0.05

8 May 03

18 Dec 03

13 May 04

0.10

0.15

0.20

0.10

0.15

0.20

16 Oct 2004 0.20 0.05 (excl Japan)

16 Oct 04

16 Nov 04

0.25

0.30

0.25

0.25

16 Oct 04 0.30 0.25 16 Oct 04 0.20 0.05 16 Oct 04 0.20 0.05 13 Oct 04 0.30 0.15

1 May 05 0.30 0.05 (excl Japan)

1 Feb 05

16 Apr 05

0.25

0.30

0.20

0.20

4 Apr 05 0.40 0.40 May 05 0.30 0.05 1 May 05 0.30 0.05

1 Aug 05 0.40 0.05 (excl Japan, Kuala Lumpur)

20 Jul 05 0.40 0.20 11 Jul 05 0.45 0.45 16 Jul 05 0.40 0.05 (also excl Singapore)

16 Jul 05 0.40 0.05 (also excl Singapore)

16 Jul 05 0.40

1 Oct 05 0.45 0.10 4 Sep 05 0.45 0.20 5 Sep 05 0.50 0.50 16 Sep 05 0.50 0.05 8 Sep 05 0.50 0.05 8 Sep 05 0.50

75

(d) the amounts charged by each of Qantas, Lufthansa, Singapore Airlines Cargo,

Cathay Pacific and British Airways for the fuel surcharge on the supply of

international airfreight services from Indonesia from January 2003 to at least

December 2005 has been was at least USD 0.10/kg for TC1 and TC2 and USD

0.05/kg for TC3;

(e) further and in the alternative, by each of the changes in the fuel surcharge it imposed

on the supply of international airfreight services from Indonesia between 2002 and

2005.

PARTICULARS

The Applicants repeat the particulars provided in subparagraph (c) above.

190. On each occasion that it imposed a fuel surcharge as set out in Schedule D each

Respondent that was a party to it gave effect to a provision of the Indonesia

Understanding.

Hong Kong

191. From at least January 2000, the Respondents (including Singapore Airlines (until July

2001) and Singapore Airlines Cargo (from July 2001)) were all members of the HK BAR-

CSC.

192. From 2000, the HK BAR-CSC was chaired by a representative of Cathay Pacific.

PARTICULARS

Chairs of the HK BAR-CSC were:

Mak January and February 2000

Leung From about March 2000 until about September 2003

T Wong From about September 2003 until about August 2005

Liu From about August 2005 until at least October 2006

193. In or about December 2003, a sub-committee of the HK BAR-CSC known as the

Surcharge Working Group (the “Surcharge Working Group”) was formed.

194. The Surcharge Working Group had authority to act on behalf of HK BAR-CSC members

in relation to insurance, security and fuel surcharges.

195. At a meeting of the HK BAR-CSC on or about 15 March 2004, an Executive Committee

of the HK BAR-CSC (the “HK BAR-CSC Ex Com”) was formed.

76

8196443_11

196. The HK BAR-CSC Ex Com was given authority to deal with surcharges, including fuel

and security surcharges.

PARTICULARS

A. Meeting of the HK BAR-CSC held on or about 15 March 2004, minutes of which were sent to members including each of the Respondents by email.

B. The meeting was attended by representatives of 29 members of the HK BAR-CSC, including each of the Respondents.

C. The HK BAR-CSC Ex Com comprised representatives from Respondents Qantas, Lufthansa, Singapore Airlines Cargo and Cathay Pacific and carriers Cargolux, Dragonair, Martinair, Polar Air and United Airlines.

197. One of the functions of the HK BAR-CSC was to provide a point of contact between

carriers and the Hong Kong Civil Aviation Department (“HK CAD”).

Hong Kong January 2000 Understanding

198. In about January 2000 each of the Respondents made an arrangement or arrived at an

understanding with other Airlines containing a provision that the parties would apply a fuel

surcharge based on Resolution 116ss for the supply of international airfreight services

from Hong Kong, being a surcharge of HKD 0.50/kg to destinations in Asia (not including

the South Pacific) and HKD 1.00/kg to all other destinations or an equivalent increase in

rates (“Hong Kong January 2000 Understanding”).

PARTICULARS

A. On or about 12 January 2000, a meeting of the HK BAR-CSC was held to discuss fuel surcharges. The meeting was attended by members of the HK BAR-CSC including each of the Respondents, as well as Air France, Cargolux, KLM, Korean Air, Malaysia Airlines, Martinair, Air Canada, Air Hong Kong, Air India, Air Mauritius, Alitalia, Canadian Airlines, China Airlines, Dragonair, Garuda, Gulf Air, Northwest Airlines, SAS, Swissair, Thai Airways and United Airlines.

B. The meeting was chaired by Cathay Pacific and it was resolved Cathay Pacific would file a joint formal application to the HK CAD on behalf of all members for the introduction of a fuel surcharge based on the IATA Fuel Price Index.

199. On or about 14 January 2000, Mak in his capacity as Chairman of the HK BAR-CSC,

wrote to the HK CAD (copied to members including each of the Respondents) stating,

inter alia:

77

8196443_11

I am writing to you in regard to the issue of Fuel Surcharge. I am sure you are aware that fuel price has been soaring for a while and fuel is a major part of the Airlines’ cost structure. All of the Airlines have been integrating the fuel costs in the airfreight rates, but the current and ongoing sharp rises of costs of fuel force us into taking an additional measure as per IATA resolution 116ss. The trigger for this in the Index derived from resolution 116ss and if the index goes above 130, the Airlines will start the fuel surcharge process going in their respective areas. I have attached a copy of an IATA telex detailing the trend of the fuel Index for the past 2 months.

The Hong Kong Board of Airline Representatives’ (BAR) Cargo-Subcommittee has agreed and would like to introduce a fuel surcharge in Hong Kong with effective on 01 February 2000, hence seeking the approval of HK CAD. Most of the carriers in Europe and USA have already announced the implementation of this fuel surcharge according to the above IATA resolution.

The surcharge applies to all shipments and will be based on chargeable weight of the shipment. The surcharge has to be added in the due carrier box on the airway bill. The fuel surcharges are area specific:

Area 1 North America HK$1.00/kg

Area 2 Europe, Middle East, Africa HK$1.00/kg

Area 3 South Pacific only HK$1.00/kg

Area 4 Asia (not including South Pacific) HK$0.50/kg

PARTICULARS

Letter from Mak to Alan Shum, Senior Operations Officer of the HK CAD dated 14 January 2000.

200. On or about 20 January 2000, the HK CAD wrote a letter to Mak requesting further

information, including a copy of Resolution 116ss.

PARTICULARS

Letter from Amy Poon, ‘for Director of Civil Aviation’ of the HK CAD (Poon) to Mak dated 20 January 2000.

201. On or about 25 January 2000, Mak responded to the letter referred to in the previous

paragraph and provided a copy of Resolution 116ss.

PARTICULARS

Letter from Mak to Poon dated 25 January 2000.

202. Poon and Mak exchanged further correspondence, including information about the

application of Resolution 116ss, on or about 26 January and 31 January 2000.

PARTICULARS

Letters from Poon to Mak dated 26 January 2000, and from Mak to Poon dated 31 January 2000.

78

8196443_11

203. At no time did Mak or any other representative of the Ex Com inform the HK CAD of the

US DoT Order 2000-3-7 or the advice from the IATA Director of Legal given at the

meeting on 14 – 16 January 1997.

204. On or about 14 February 2000, the HK CAD approved the application by the BAR-CSC to

impose a fuel surcharge in accordance with Resolution 116ss, with effect from 16

February 2000. The approval was stated to be valid for 1 year, or until the fuel price index

referred to in Resolution 116ss dropped below 110 for a period of 2 consecutive weeks,

whichever was earliest.

PARTICULARS

Letter from Stephen Kwok ‘for Director of Civil Aviation’ of the HK CAD (Kwok) to Mak dated 14 February 2000. The letter commenced:

I refer to your application concerning a fuel surcharge for cargo. I note that the surcharge is a measure proposed by Airlines in accordance with the IATA Resolution 116ss

205. From approximately 16 February 2000 at least the following respondents gave effect to the

provision of the Hong Kong January 2000 Understanding by imposing the following fuel

surcharges on Routes from Hong Kong (HKD/kg):

Respondent Amount From on or about, to on or about

Qantas 1.00 to TC1 and TC2 and Australia and South West Pacific; 0.50 to TC3 excl. Australia and South West Pacific

1 Mar 00 – 15 Nov 00

Cathay Pacific 1.00 to TC1 and TC2 and South West Pacific; 0.50 to TC3 excl. South West Pacific

16 Feb 00 – 30 Oct 00

Air New Zealand

1.00

16 Feb 00 – 30 Oct 00

Hong Kong October 2000 Understanding

206. In or about early October 2000 each of the Respondents made an arrangement or arrived at

an understanding with other Airlines containing a provision that the parties would apply an

increased fuel surcharge of HKD0.70/kg to destinations in Asia (other than South and

South West Pacific) and HKD1.40/kg to all other destinations or an equivalent increase in

rates (“Hong Kong October 2000 Understanding”).

207. On or about 12 October 2000, Kwong Kuen Leung (Cathay Pacific) wrote to Poon

requesting approval for an increase in the fuel surcharge. Leung noted that the Lufthansa

Index had exceeded 150 for some time, and referred to the guideline proposed by IATA

79

8196443_11

that when the fuel price index exceeds 150 for a period of two consecutive weeks, the fuel

surcharge amounts would be reviewed.

208. On or about 27 October 2000, the HK CAD approved the revised fuel surcharge with

effect from 1 November 2000.

PARTICULARS

Letter from Clara Wong ‘for Director of Civil Aviation’ of the HK CAD to Leung (Cathay Pacific) of 27 October 2000.

209. At least the following Respondents gave effect to the Hong Kong October 2000

Understanding by imposing the following fuel surcharge on Routes from Hong Kong

(HKD/kg):


Qantas 1.40 to TC1 and TC2 and Australia and South West Pacific; 0.70 to TC3 excl. Australia and South West Pacific

1.00 to TC1 and TC2 and Australia and South West Pacific; 0.50 to TC3 excl. Australia and South West Pacific

16 Nov 00 – 31 Dec 00

1 Jan 01 – 11 Dec 01

Cathay Pacific 1.40 to TC1 and TC2 and South West Pacific; 0.70 to TC3 excl. South West Pacific

1 Nov 00 – 11 Dec 01

Air New Zealand

1.40

1 Nov 00 – 11 Dec 01

210. On or about 6 December 2001 Clara Wong ‘for Director-General of Civil Aviation’ of the

HK CAD wrote to Kwong Kuen Leung, chairman of the HK BAR-CSC noting that the

fuel price index had dropped below 101 for two consecutive weeks, and requesting that all

cargo fuel surcharges are removed with immediate effect. Kwong Kuen Leung responded

on 7 December 2001 that the HK BAR-CSC had held a meeting that day and decided to

remove the fuel surcharge effective 11 December 2001. Kwong Kuen Leung then wrote to

HK CAD again on 11 December 2001 to confirm that the surcharge had been withdrawn.

Hong Kong 2002 Understanding

211. On or about 16 May 2002 or alternatively 23 July 2002, each of the Respondents made an

arrangement or arrived at an understanding with other Airlines containing provisions:

(a) to use a revised methodology based on the Lufthansa Fuel Index and the Lufthansa

Adjustment Mechanism and in the terms alleged in the table below (“Hong Kong

Lufthansa Methodology”), and those carriers would impose surcharges in

80

8196443_11

accordance with that methodology for the supply of international airfreight services

from Hong Kong; and

PARTICULARS

A. On or about 16 May 2002, at a meeting of the HK BAR-CSC, a majority of carriers decided to change from the pre-2002 Hong Kong methodology to a revised fuel surcharge methodology, to apply to the HK CAD to obtain approval for the revised methodology, and to impose fuel surcharges in accordance with the revised methodology upon approval.

B. On or about 5 June 2002, Leung, the Chairman of the HK BAR-CSC and Cathay Pacific’s Cargo Sales Manager Hong Kong, wrote a letter to the HK- CAD on behalf of the HK BAR-CSC, and copied to all members, applying for approval for the revised methodology.

C. On or about 19 July 2002, the HK CAD approved the revised methodology for one year with effect from 19 July 2002 until 18 July 2003.

D. On or about 23 July 2002, at a further meeting of the HK BAR-CSC, it was decided to commence charging fuel surcharges in accordance with the revised methodology from 1 August 2002, and to impose a surcharge of HKD0.40/kg (HKD0.20/kg for Asia, except South and South West Pacific) from that date on the supply of international airfreight services from Hong Kong.

E. The revised methodology was as follows:

Implementation / increase Reduction / suspension

Index Fuel surcharge Index Fuel surcharge

Exceeds 115 for 2 consecutive weeks

HKD0.40/kg (HKD0.20/kg for Asia, except South and South West Pacific)

Below 170 for 2 consecutive weeks



HKD0.80/kg (HKDO.40/kg for Asia, except South and South West Pacific)










Suspend surcharge

(b) to extend the operation of that methodology from time to time (the “Hong Kong

2002 Understanding”).

81

8196443_11

212. From time to time the Hong Kong 2002 Understanding was extended and the resulting

surcharges imposed as set out in Schedule E – Hong Kong 2002 Understanding.

213. On each occasion that it imposed a fuel surcharge as set out in Schedule E each

Respondent gave effect to a provision of the Hong Kong 2002 Understanding.

Japan

214. Each of the Respondents was a member of the Interline Cargo Sales Association of Japan

(“ICAJ”).

215. From time to time representatives of each of the Respondents attended meetings of the

various subgroups of the ICAJ including:

(a) the ICAJ steering committee, of which each of the Respondents was a member; and

(b) the ICAJ TC3 subgroup, which met to discuss matters relevant to international

airfreight services from Japan to destinations within Asia and Oceania, which

included Australia.

PARTICULARS

A. The members of the ICAJ TC3 subgroup included Qantas, Singapore Airlines Cargo, Cathay Pacific and Air New Zealand. There were various chapters of the TC3 subgroup including the Tokyo chapter and the Osaka chapter.

B. At least the following Respondents attended at least the following meetings of the ICAJ TC3 subgroup:

82

8196443_11

Date and Time Place Attendees

23 Jan 02 14:50 - 15.50

Conference Room (N1481)

Japan Airlines Building

Qantas

Cathay Pacific

26 Mar 02 10.00 - 11.30

Meeting Room (N1481)


Qantas

Cathay Pacific

Air New Zealand

22 May 02 13.00 - 14.45



Qantas

Singapore Airlines Cargo

Cathay Pacific

Air New Zealand

24 Jul 02 13.30 - 15.00

Conference Room (N1482)


Qantas


Cathay Pacific

Air New Zealand

26 Sep 02 Conference Room (N1481)


Qantas


Cathay Pacific

Air New Zealand

21 May 03 13.00 - 15.00

Conference Room

All Nippon Airways Head Office, Shiodome

Qantas


Cathay Pacific

Air New Zealand

19 Nov 03 13.30 - 15.00

Meeting Room

All Nippon Airways Head Office, Shiodome

Cathay Pacific

Air New Zealand

29 Jan 04 13.30 - 15.00



Air New Zealand

Cathay Pacific

Japan Airlines

Qantas

May 04 All Nippon Airways Office Air New Zealand

Cathay Pacific

Japan Airlines


Qantas

March 05 All Nippon Airways Office Cathay Pacific

Air New Zealand

22 Mar 05 ANA Conference Room

Shiodome City-Center Building

Qantas


Cathay Pacific

Air New Zealand

18 May 05 JAL Building Conference Room Qantas

Air New Zealand

21 Sep 05 ANA Meeting Room

Shiodome City-Center Building

Cathay Pacific

Air New Zealand

Japan Understanding

216. By at least October 2002, each of Qantas, Cathay Pacific , Singapore Airlines Cargo, and

Air New Zealand made an arrangement or arrived at an understanding (“the Japan

Understanding”) with other Airlines containing the following provisions or one or more

of them:

83

8196443_11

(a) the parties would meet and discuss or otherwise communicate with each other about

their ability and intentions to impose fuel surcharges on their international airfreight

services, including the amount and timing of the surcharge, prior to those proposals

being finalised and then made known to their Customers;

(b) the discussion or communication would take place with enough lead time to allow

parties to adjust their own imposition of fuel surcharges in light of the matters

discussed and information received; and

(c) each party would charge the amount of the fuel surcharge advised to the other parties

after discussions or communications unless and until it advised the other parties to

the contrary.

PARTICULARS

Particulars of the Japan Understanding and its implementation are contained in Schedule G – Japan Understanding.

217. On each occasion that it imposed a fuel surcharge as set out in Schedule G each

Respondent that was a party to it gave effect to a provision of the Japan Understanding.

SECURITY SURCHARGE

116.218. In or about late September/early October 2001, the Respondents and the Other Cartel

Participants and each of them made an agreement or arrangement or reached an

understanding containing provisions that or to the effect that each of them would:

(a) impose on international airfreight services a surcharge attributed to the costs of

additional airline security measures following the events known to the world

including the Respondents as the “September 11 attacks” in the United States of

America on all international airfreight services, including Australian international

airfreight services, supplied, offered to be supplied or that could be supplied by each

of them (“security surcharge”);

(b) monitor and from time to time agree on variations to the amount or application of the

security surcharge; and

(c) conceal the agreement, arrangement or understanding as in place from time to time

from the whole world including the Applicants and Group Members,

(“the Security Surcharge Arrangement”).

84

8196443_11

PARTICULARS

A. The Security Surcharge Arrangement was partly oral and partly to be implied.

B. In so far as it was oral, the Security Surcharge Arrangement was made in communications between representatives of the Respondents and others in or around late September/early October 2001.

C. In so far as they were to be implied, the above provisions of the Security Surcharge Arrangement are to be implied from:

a. from the matters alleged in paragraphs 219 and 222 below; and

b. in the case of the provision in paragraph (c) above, to give business efficacy to the Security Surcharge Arrangement, as an arrangement which depended on secrecy for its efficacy.

Further particulars will be provided following the completion of discovery.

117.219. From about 16 October 2001, the Respondents and each of them:

(a) supplied or offered to supply Australian international airfreight services to customers

in Australia subject to payment by the customers of the security surcharge of $20 per

airway bill and $0.10 AUD per kg of airfreight to be transported (the “Standard

security surcharge”) (except in the case of Lufthansa which imposed a security

surcharge of 0.15 Euro per kg of airfreight to be transported (the “Lufthansa

security surcharge”);

(b) supplied or offered to supply Australian international airfreight services to customers

subject to the payment of the Standard security surcharge or its equivalent in another

currency (except in the case of Lufthansa which imposed the Lufthansa security

surcharge or its equivalent in another currency) regardless of where those surcharges

would be paid or by whom those surcharges would be paid; and

(c) concealed the existence and terms of the Security Surcharge Arrangement from the

whole world including the Applicants and Group Members.

And on each occasion that they did so they gave effect to the Security Surcharge

Arrangement.

118.220. The supplies referred to in paragraphs 219(a) and 219(b) included one or more of the

Australian activities and the offers to supply referred to in paragraphs 219(a) and 219(b)

were:

85

8196443_11

(a) made in Australia; further or alternatively

(b) addressed to persons in Australia; further or alternatively

(c) intended by the Respondents to be received by persons in Australia; further or

alternatively

(d) received in Australia.

119.221. By reason of the preceding paragraph, the Respondents and each of them engaged in

the conduct referred to in paragraphs 219(a) and 219(b) in Australia within the meaning of

the TPA.

120.222. The concealment referred to in paragraph 219(c) was conduct, by the Respondents

and each of them in Australia within the meaning of the TPA by:

(a) reason of that concealment comprising an omission to inform persons in Australia of

the matters concealed; further or alternatively;

(b) publishing in Australia material which did not disclose the matters concealed.

PARTICULARS

The material includes company reports as published in Australia by way of the internet. Further particulars of the material and publication will be provided after discovery.

121.223. The Respondents and each of them engaged in the conduct alleged in paragraph 219

and 222 pursuant to the Security Surcharge Arrangement.

Singapore ISS Understanding

224. From about 16 October 2001 until 23 January 2003 each of Cathay Pacific, Singapore

Airlines Cargo and Air New Zealand and other Airlines imposed an insurance and security

surcharge (“ISS”) of SGD0.18/kg on the supply of international airfreight services from

Singapore including (but not limited to) flights to Australia.

225. On or about 23 January 2003, each of Air New Zealand, Cathay Pacific and Singapore

Airlines Cargo made an arrangement or arrived at an understanding with other Airlines

(the “Singapore ISS Understanding”), containing a provision that the parties would

continue to charge the amount they were currently charging their Customers for the ISS on

86

8196443_11

the supply of international airfreight services from Singapore including (but not limited to)

to Australia and would not reduce that amount.

PARTICULARS

A. The Singapore ISS Understanding was arrived at at the meeting of the Singapore BAR-CSC held on 23 January 2003 during which the chairman of the Singapore BAR-CSC, Tan Chong-Beng (Singapore Airlines Cargo), stated (in response to a request from the Civil Aviation Authority of Singapore (CAAS) and the Singapore Air Cargo Agents Association (SAAA) that carriers consider lowering their ISS to ensure that Singapore remains a competitive hub) that the charge would not be reduced and member carriers agreed that there would be no reduction in the ISS charge.

B. The Singapore BAR-CSC meeting of 23 January 2003 was attended by Tan Chong Beng and Nazim Ros (Singapore Airlines Cargo), Winston Tan (Cathay Pacific) and Ronnie Chew (Air New Zealand).

226. The Singapore ISS Understanding was further comprised of the minutes of the Singapore

BAR-CSC meeting of 23 January 2003 which Singapore Airlines Cargo sent to members

of the Singapore BAR-CSC including Qantas, Lufthansa (Ibrahim Altway), Cathay Pacific

(Winston Tan), Air New Zealand (Ronnie Chew) and Trina Chiang (British Airways).

227. From on or about 23 January 2003 to a date unknown to the Applicant, each of Air New

Zealand, Cathay Pacific and Singapore Airlines Cargo imposed an ISS of SGD0.18/kg on

the supply of international airfreight services from Singapore including (but not limited to)

flights to Australia.

228. By imposing the ISS referred to in the previous paragraph, each of Air New Zealand,

Cathay Pacific and, Singapore Airlines Cargo gave effect to:

(a) the provision of the Singapore ISS Understanding; and/or

(b) a provision of the Security Surcharge Arrangement.

229. Further or alternatively, each of Air New Zealand, Cathay Pacific and Singapore Airlines

Cargo gave effect to the provision of the Singapore ISS Understanding by not discounting

the ISS it had imposed on the supply of international airfreight services from Singapore

including (but not limited to) flights to Australia.

PARTICULARS

87

8196443_11

Indonesia

October 2001 Indonesia Security Surcharge Understanding

230. On or about 4 October 2001, each of Lufthansa, Singapore Airlines Cargo and Cathay

Pacific made an arrangement or arrived at an understanding with a number of other

Airlines (the “October 2001 Indonesia Security Surcharge Understanding”),

containing a provision that with effect from 16 October 2001, each of those carriers would

impose a security surcharge from Indonesia to the following destinations of no less than

the following amounts:

(a) USD0.10/kg on the supply of international airfreight services from Indonesia to TC1

and TC2; and

(b) USD0.05/kg on the supply of international airfreight services from Indonesia to TC3

(including Australia).

PARTICULARS

A. The October 2001 Indonesia Security Surcharge Understanding was arrived at at the meeting of ACRB – Indonesia held on 4 October 2001.

B. The minutes of the ACRB – Indonesia meeting held on 4 October 2001 were circulated by email and/or fax to members of the ACRB.

231. Each of Lufthansa, Singapore Airlines Cargo and Cathay Pacific gave effect to the

provisions of the October 2001 Indonesia Security Surcharge Understanding by imposing,

from on or about 16 October 2001 until at least 1 January 2007, a security surcharge from

Indonesia to the following destinations of the following amounts:


and TC2; and

(b) USD0.05/kg on the supply of international airfreight services from Indonesia to TC3.

232. Further or alternatively by making the October 2001 Indonesia Security Surcharge

Understanding, each of Lufthansa, Cathay Pacific, Singapore Airlines Cargo and Cathay

Pacific gave effect to a provision of the Security Surcharge Understanding.

88

8196443_11

January 2003 Indonesia Security Surcharge Understanding

233. Further or alternatively to paragraph 230, on or about 29 January 2003 each of Lufthansa,

Singapore Airlines Cargo and Cathay Pacific made an arrangement or arrived at an

understanding with a number of other Airlines (the “January 2003 Indonesia Security

Surcharge Understanding”), containing a provision that the security surcharges then in

place from Indonesia would be maintained.

PARTICULARS

A. The January 2003 Indonesia Security Surcharge Understanding was arrived at the meeting of ACRB – Indonesia held on 29 January 2003.

B. The minutes of the ACRB – Indonesia meeting held on 29 January 2003 were circulated by email and/or fax to those carriers that attended and to members of the ACRB – Indonesia that did not attend.

234. Each of Lufthansa, Singapore Airlines Cargo and Cathay Pacific gave effect to the

provision of the January 2003 Indonesia Security Surcharge Understanding by maintaining

thereafter the security surcharge referred to in paragraph 231 from 29 January 2003 until 8

May 2003.

235. Further or alternatively by making the January 2003 Indonesia Security Surcharge

Understanding, each of Lufthansa, Singapore Airlines Cargo and Cathay Pacific gave

effect to a provision of the Security Surcharge Understanding.

May 2003 Indonesia Security Surcharge Understanding

236. Further or alternatively to paragraph 230, on or about 9 May 2003, each of Lufthansa,

Singapore Airlines Cargo, Cathay Pacific and British Airways made an arrangement or

arrived at an understanding with a number of other Airlines (the “May 2003 Indonesia

Security Surcharge Understanding”), containing a provision that security surcharges

then in place from Indonesia would be maintained.

PARTICULARS

A. The May 2003 Indonesia Security Surcharge Understanding was arrived at at the meeting of ACRB – Indonesia held on 9 May 2003.

89

8196443_11

B. The minutes of the ACRB – Indonesia meeting held on 9 May 2003 were circulated by email and/or fax to those carriers that attended and to members of the ACRB Indonesia that did not attend.

237. Each of Lufthansa, Singapore Airlines Cargo, Cathay Pacific and British Airways gave

effect to the provision of the May 2003 Indonesia Security Surcharge Understanding by

maintaining thereafter the security surcharge referred to in paragraph 231 from 9 May

2003 until 15 October 2004.

238. Further or alternatively by making the May 2003 Indonesia Security Surcharge

Understanding, each of Lufthansa, Singapore Airlines Cargo, Cathay Pacific and British

Airways gave effect to a provision of the Security Surcharge Understanding.

September 2004 Indonesia Security Surcharge Understanding

239. Further or alternatively to paragraph 230, on or about 29 September 2004, each of Qantas,

Lufthansa, Singapore Airlines Cargo and British Airways made an arrangement or arrived

at an understanding with a number of other Airlines (the “September 2004 Indonesia

Security Surcharge Understanding”), containing a provision that with effect from 16

October 2004 each of those carriers would impose a security charge from Indonesia to the

following destinations of no less than the following amounts:


and TC2; and


PARTICULARS

A. The September 2004 Indonesia Understanding was arrived at at the meeting of ACRB – Indonesia held on 29 September 2004.

B. The minutes of the ACRB – Indonesia meeting held on 29 September 2004 were circulated by email to those carriers that attended and to members of the ACRB – Indonesia that did not attend.

240. Each of Qantas, Lufthansa, Singapore Airlines Cargo and British Airways gave effect to

the provision of the September 2004 Indonesia Security Surcharge Understanding by

thereafter maintaining the security surcharge referred to in paragraph 231 from 16 October

2004 until on or about 15 July 2005.

90

8196443_11

241. Further or alternatively by making the September 2004 Indonesia Security Surcharge

Understanding, each of Qantas, Lufthansa, Singapore Airlines Cargo and British Airways

gave effect to a provision of the Security Surcharge Understanding.

PARTICULARS

July 2005 Indonesia Security Surcharge Understanding

242. Further or alternatively to paragraph 230, on or about 15 July 2005, each of Qantas,

Lufthansa, Singapore Airlines Cargo, Cathay Pacific and British Airways made an

arrangement or arrived at an understanding with a number of other Airlines (the “July

2005 Indonesia Security Surcharge Understanding”), containing a provision that the

security surcharge from Indonesia was to be maintained at no less than the following

amounts for the following destinations:


and TC2; and


243. Each of Qantas, Lufthansa, Singapore Airlines Cargo, Cathay Pacific and British Airways

gave effect to the provision of the July 2005 Indonesia Security Surcharge Understanding

by thereafter maintaining the security surcharge referred to in paragraph 231 from 16 July

2005 until at least 1 January 2007.

PARTICULARS

A. The July 2005 Indonesia Security Surcharge Understanding was arrived at at the meeting of ACRB – Indonesia held on 15 July 2005.

B. The minutes of the ACRB – Indonesia meeting held on 15 July 2005 were circulated by email to those carriers that attended and to members of the ACRB – Indonesia that did not attend.

244. Further or alternatively by making the July 2005 Indonesia Security Surcharge

Understanding, each of Qantas, Lufthansa, Singapore Airlines Cargo, Cathay Pacific and

British Airways gave effect to a provision of the Security Surcharge Understanding.

91

8196443_11

Hong Kong

October 2001 Hong Kong Insurance Surcharge Understanding

245. On or about 3 October 2001, each of Lufthansa, Singapore Airlines Cargo, Cathay Pacific

and Air New Zealand made an arrangement or arrived at an understanding with other

Airlines containing a provision that the parties would impose an insurance surcharge from

Hong Kong of HKD0.50/kg with effect from 11 October 2001 (the “October 2001 Hong

Kong Insurance Surcharge Understanding”).

PARTICULARS

A. On or about 26 September 2001, there was a meeting of the HK BAR-CSC which was called for the purpose of discussing increased insurance costs and the possible imposition of a surcharge to recover these additional costs. The meeting was attended by representatives from 32 other carriers including Respondent attendees including Raymond Wong (Qantas), Gabriela Ahrens (Lufthansa Cargo), Robert Yip (Singapore Airlines Cargo), Kenneth Ko and Sammy Mak (Cathay Pacific), Martin Ngai (Air New Zealand) and Sam Chau (British Airways).

B. At the meeting, the carriers exchanged information as to what insurance or security surcharges they were imposing or intending to impose elsewhere, and expressed views as to what should be imposed in Hong Kong. As no unanimous decision was reached at the meeting, the Chairman requested carriers to obtain responses from their head offices and report back to him by close of business on Friday, 28 September 2001.

C. On the same day, the Chairman of the HK BAR-CSC wrote to all members enclosing a questionnaire for them to complete that asked whether they agreed to a proposed insurance surcharge of HKD0.50/kg.

D. There was a further meeting of the HK BAR-CSC held on or about 3 October 2001, at which 25 (out of 36) carriers agreed to impose an insurance surcharge of HKD0.50/kg on chargeable weight with effect from 11 October 2001. The carriers which agreed to impose the surcharge at the meeting were Air New Zealand, Aeroflot, Air France, Alitalia, Asiana Airlines, Air Hong Kong, Air Mauritius, All Nippon Airways, Cathay Pacific, China Airlines, Emirates, FedEx, Garuda, Gulf Air, Dragonair, Japan Airlines, Korean Air, Malaysia Airlines, Northwest Airlines, Pakistan Airlines, Royal Brunei Airlines, Singapore Airlines Cargo, South African Airways, Thai Airways and United Airlines.

E. On 3 October 2001, Leung (Cathay Pacific) wrote to Kwok (HK CAD) on behalf of the HK BAR-CSC applying for HK CAD approval of the agreed insurance surcharge.

F. On 4 October 2001, Leung sent a further letter to Kwok providing the list of 25 carriers which had voted in favour of the insurance surcharge.

92

8196443_11

G. On or about 5 October 2001, six additional carriers agreed to join in the insurance surcharge, and Leung notified the HK CAD of this fact by letter dated 5 October 2001. The six additional carriers were Cargolux, Martinair, Lufthansa, KLM, Swissair and SAS.

H. On 11 October 2001, the HK CAD wrote to Leung notifying him that the HK CAD needed more time and additional information in order to approve the insurance surcharge.

I. On 19 October 2001, the HK CAD wrote to Leung notifying him that the CAD had approved the insurance surcharge with effect from 22 October 2001.

246. Each of Lufthansa, Singapore Airlines Cargo, Cathay Pacific and Air New Zealand gave

effect to the provision of the October 2001 Hong Kong Insurance Surcharge

Understanding by imposing an insurance surcharge of HKD0.50/kg on the supply of

international airfreight services from Hong Kong in the period from on or about 25

October 2001 until on or about 10 January 2003.

December 2002 Hong Kong Insurance Surcharge Understanding

247. On or about 16 December 2002 each of Singapore Airlines Cargo, Cathay Pacific and Air

New Zealand made an arrangement or arrived at an understanding with other Airlines

containing a provision that the parties would impose a reduced insurance surcharge from

Hong Kong of HKD0.25/kg with effect from 11 January 2003 (the “December 2002 Hong

Kong Insurance Surcharge Understanding”).

PARTICULARS

A. Letter from Cathay Pacific to HK BAR-CSC members advising them that Cathay Pacific’s insurance premiums had reduced, calling a meeting for 2 December 2002 to discuss whether to apply to the HK CAD for a reduced insurance surcharge, and attaching a questionnaire.

B. Responses to the questionnaire from carriers, received in December 2002. Altogether, 48 carriers responded to the questionnaire or otherwise communicated to Cathy Pacific their agreement with the proposal.

C. Meeting of the HK BAR-CSC held on 2 December 2002, at which a majority of carriers attending indicated a willingness to apply a reduced insurance surcharge.

248. On 20 December 2002, Leung (Cathay Pacific) wrote on behalf of the HK BAR-CSC to

the HK CAD, attaching a list of 32 carriers which applied for a reduction of the insurance

surcharge from HKD0.50/kg to HKD0.25/kg, and a list of 16 carriers which applied for a

93

8196443_11

new insurance surcharge of HKD0.25/kg. The carriers in the first list were Air New

Zealand, Air Canada, Air France, Air India, Alitalia, Asiana Airlines, Air Hong Kong, Air

Mauritius, All Nippon Airways, Cathay Pacific, China Airlines, Emirates, EVA Air,

FedEx, Garuda, Gulf Air, Dragonair, Japan Airlines, Korean Air, Malaysia Airlines,

Nippon Cargo, Northwest Airlines, Pakistan Airlines, Royal Brunei Airlines, Singapore

Airlines Cargo, South African Airways, Swiss International Air Lines, Thai Airways,

United Airlines, and Virgin Atlantic. The carriers on the second list were Air China, China

Eastern Airlines, China Southern Airlines, China Southwest Airlines, China Northwest

Airlines, China Yunnan Airlines, Continental Airlines, Evergreen, Finnair, Polar Air,

Nepal Airlines, Saudi Arabian Airlines, Vietnam Airlines, and UPS.

249. On 27 December 2002, the HK CAD approved the new insurance surcharge.

250. Each of Singapore Airlines Cargo, Cathay Pacific and Air New Zealand gave effect to the

provision of the December 2002 Hong Kong Insurance Surcharge Understanding by

imposing an insurance surcharge of HKD0.25/kg on the supply of international airfreight

services from Hong Kong in the period 11 January 2003 until 21 January 2004.

2004 Hong Kong Security Charge Understanding

251. In or about March 2004, each of Qantas, Singapore Airlines Cargo, Cathay Pacific and Air

New Zealand made an arrangement or arrived at an understanding with each other and at

least Air Canada, China Airlines, Dragonair, Emirates, Korean Air, Malaysia Airlines,

Northwest Airlines, Polar Air, South African Airways and Thai Airways, containing a

provision that the parties would impose a security charge of HKD1.00/kg on the supply of

international airfreight services from Hong Kong (the “2004 Hong Kong Security Charge

Understanding”).

PARTICULARS

A. At a HK BAR-CSC meeting on 10 November 2003, attended by 28 carriers including Singapore Airlines Cargo, it was agreed to set up a Surcharge Working Group to discuss security and insurance surcharges.

B. By March 2004 the HK BAR-CSC had formed an executive committee to deal with surcharges. The members of the executive committee included representatives from Qantas, Lufthansa, Singapore Airlines Cargo (Clinton Tan), Cathay Pacific and others including Dragonair, Martinair and United Airlines, Northwest Airlines and Polar Air.

94

8196443_11

C. Proposals from the HK BAR-CSC to the HK CAD to extend the insurance surcharge past 21 January 2004 were rejected by the HK CAD on or about 13 January 2004.

252. In or about February 2004 applications by various European carriers to the HK CAD for

permission to impose a security surcharge of HGD1.00/kg were approved by the HK CAD.

The approved applicants included Lufthansa, KLM, Cargolux, British Airways and

Martinair.

253. At a meeting of the HK BAR-CSC surcharge executive committee on 30 March 2004, it

was reported that the HK CAD had advised that a security charge that was included as part

of a carrier’s contract rate would not need separate approval. It was agreed that Cathay

Pacific would take the lead to implement a security charge, and it was agreed that the

starting date would be 1 May 2004. Minutes of the meeting were circulated to all HK

BAR-CSC members.

254. At subsequent meetings of the HK BAR-CSC surcharge executive committee, and in the

course of emails between executive committee members:

(a) it was decided that the HK BAR-CSC would not directly coordinate the security

charge, to avoid allegations of price fixing;

(b) Cathay Pacific announced that it would be charging HKD1.00/kg;

(c) other carriers, including the carriers listed above, advised Cathay Pacific orally that

they would follow Cathay Pacific;

(d) the plans of major carriers to impose a security charge were discussed;

(e) Singapore Airlines Cargo announced that it would follow the lead of Cathay Pacific;

and

(f) Cathay Pacific announced that the security charge would be imposed with effect

from 1 June 2004.

255. Respondents gave effect to the provision of the 2004 Hong Kong Security Charge

Understanding by imposing a security charge of HKD1.00/kg on the supply of

international airfreight services from Hong Kong for the following periods:

95

8196443_11

Qantas 6 June 2004 to at least January 2005

Singapore Airlines Cargo 1 June 2004 until at least February 2006

Cathay Pacific 1 June 2004 until 30 November 2006

Air New Zealand 1 June 2004 until at least June 2006

CONTRAVENTIONS

122.256. Each of:

(a) the Fuel Surcharge Arrangement; and

(b) the Security Surcharge Arrangement; and further or alternatively

(c) the Global Cartel Arrangement;

(c) the Singapore Understanding; and

(d) the Indonesia Understanding; and

(e) the Hong Kong January 2000 Understanding; and

(f) the Hong Kong October 2000 Understanding; and

(g) the Hong Kong 2002 Understanding; and

(h) the Japan Understanding; and

(i) the October 2001 Indonesia Security Surcharge Understanding; and

(j) the January 2003 Indonesia Security Surcharge Understanding; and

(k) May 2003 Indonesia Security Surcharge Understandingthe May 2003 Indonesia

Security Surcharge Understanding; and

(l) the September 2004 Indonesia Security Surcharge Understanding; and

(m) the July 2005 Indonesia Security Surcharge Understanding; and

(n) the October 2001 Hong Kong Insurance Surcharge Understanding; and

(o) the December 2002 Hong Kong Insurance Surcharge Understanding; and

(p) the 2004 Hong Kong Security Charge Understanding; and

contained provisions which:

(d)(q) had the purpose or effect, or were likely to have the effect, of fixing, controlling or

maintaining, or providing for the fixing, controlling or maintaining, of the price of

international airfreight services supplied by those Respondents or bodies corporate

96

8196443_11

related to them who were parties to the relevant arrangement in competition with

each other, within the meaning of section 45A of the TPA; and

(e)(r) by reason of the matters alleged in the preceding subparagraph, are deemed by

section 45A to have had the purpose or effect, or been likely to have the effect, of

substantially lessening competition within the meaning of section 45(2) of the TPA.

123.257. By reason of the matters alleged in the preceding paragraph, by making:

(a) the Fuel Surcharge Arrangement;

(b) the Security Surcharge Arrangement; further or alternatively

(c) the Global Cartel Arrangement;

(c) the Singapore Understanding; and

(d) the Indonesia Understanding; and

(e) the Hong Kong January 2000 Understanding; and

(f) the Hong Kong October 2000 Understanding; and

(g) the Hong Kong 2002 Understanding; and

(h) the Japan Understanding; and

(i) the October 2001 Indonesia Security Surcharge Understanding; and

(j) the January 2003 Indonesia Security Surcharge Understanding; and

(k) May 2003 Indonesia Security Surcharge Understandingthe May 2003 Indonesia

Security Surcharge Understanding; and

(l) the September 2004 Indonesia Security Surcharge Understanding; and

(m) the July 2005 Indonesia Security Surcharge Understanding; and

(n) the October 2001 Hong Kong Insurance Surcharge Understanding; and

(o) the December 2002 Hong Kong Insurance Surcharge Understanding; and

(p) the 2004 Hong Kong Security Charge Understanding; and

the Respondents and each of them who was party to the relevant arrangement engaged in

conduct in contravention of section 45(2)(a)(ii) of the TPA.

97

8196443_11

124.258. Further and in the alternative, by reason of the matters alleged in paragraph 256, and

by making each of the:

(a) the Fuel Surcharge Arrangement; further or alternatively

(b) the Security Surcharge Arrangement;

(a) the Singapore Understanding;

(b) the Indonesia Understanding;

(c) the Hong Kong January 2000 Understanding;

(d) the Hong Kong October 2000 Understanding;

(e) Hong Kong 2002 Understanding; and the

(f) Japan Understanding;

(“the Fuel Surcharge Implementation Understandings”) the respondents and each of

them who was a party to the relevant arrangement gave effect to the, or alternatively gave

effect in Australia, to the Fuel Surcharge Arrangement in contravention of section

45(2)(b)(ii) of the TPA.

277A. Further and in the alternative, by reason of the matters alleged in paragraphs 140 to

174, on each occasion the respondents imposed a fuel surcharge pursuant to the Fuel

Surcharge ArrangmentArrangement, the respondents gave effect, or alternatively gave

effect in Australia, to the Fuel Surcharge Arrangement in contravention of section


259. Further and in the alternative, by reason of the matters alleged in paragraph 256, and by

making the:

(a) October 2001 Indonesia Security Surcharge Understanding;

(b) January 2003 Indonesia Security Surcharge Understanding;

(c) May 2003 Indonesia Security Surcharge Understanding;

(d) September 2004 Indonesia Security Surcharge Understanding;

(e) July 2005 Indonesia Security Surcharge Understanding;

(f) October 2001 Hong Kong Insurance Surcharge Understanding;

(g) December 2002 Hong Kong Insurance Surcharge Understanding;

98

8196443_11

(h) 2004 Hong Kong Security Charge Understanding;

(the “Security Surcharge Implementation Understandings”) the Respondents and each

of them who was a party to the relevant arrangement gave effect, or alternatively gave

effect in Australia to the Security Surcharge Arrangement in contravention of section


278A.Further and in the alternative, by reason of the matters alleged in paragraphs 218 to 223 ,

on each occasion the respondents imposed a security surcharge pursuant to the Fuel

Surcharge Arrangement, the respondents gave effect, or alternatively gave effect in

Australia, to the Security Surcharge Arrangement in contravention of section 45(2)(b)(ii)

of the TPA.

125.260. [Deleted]

126.261. [Deleted]

127.262. [Deleted]

128.263. [Deleted]

129.264. [Deleted]

130.265. [Deleted]

OVERCHARGE

131.266. At all material times during the Period the Respondents:

(a) together carried around 60% of Australian international airfreight and together with

the Other Cartel Participants carried around 80% of Australian international

airfreight; and

PARTICULARS

So far as the Applicants are presently able to say, during the Period the Respondents carried the following proportions of Australian international airfreight (expressed as a percentage of tonnes of freight actually carried):

99

8196443_11

Respondent Approx. % tonnes of freight carried

Qantas 24

Lufthansa 1.67

Singapore Airlines & Singapore Airlines Cargo

16.02

Cathay Pacific 8.30

Air NZ 6.56

JAL 2.84

BA 3

(b) together, and in combination with the Other Cartel Participants, were able to and did,

by their behaviour set out in paragraphs 170 and 219 above, increase the price for

Australian international airfreight services in a way which was concealed as set out

in paragraphs 170 and 219 above.

132.267. Further or alternatively to paragraph 266, at all material times during the Period, the

Respondents:

(a) carried the percentages of tonnes of Australian international airfreight actually

carried as set out in Schedule 3; and

(b) together and in combination with Other Cartel Participants, were able to and did, by

their behaviour set out above, increase the price of international freight services for

routes between Australia and each of the places specified in Schedule 3 in a way

which was concealed as set out in paragraphs 170 and 219 above.

133.268. During the Period, on the occasions when fuel surcharges or corresponding increases

in price were applied to international airfreight services, including Australian international

airfreight services, by carriers, including the Respondents, partially or wholly in

accordance with the Fuel Surcharge Arrangement, or as a result of:

(a) the Lufthansa adjustment mechanism and the Lufthansa Price Index;

(b) Lufthansa’s fuel surcharge;

(c) the BA Adjustment mechanism and the British Airways World Cargo Fuel Index.

(d) BA’s fuel surcharge;

(e) the JAL adjustment mechanism and the JAL Cargo Fuel Surcharge Index; or

(f) JAL’s fuel surcharge,

100

8196443_11

the Fuel Surcharge Arrangement was a cause of the prices for those international airfreight

services being higher than the prices otherwise would have been (the “Fuel Overcharge”).

PARTICULARS

The Fuel Overcharge comprises the fuel surcharges or corresponding increases in price that were applied to international airfreight services, including Australian international airfreight services.

Particulars of the occasions on which carriers applied fuel surcharges or corresponding increases partially or wholly in accordance with or as a result of the adjustment mechanisms or fuel surcharges alleged above will be provided after completion of transactional discovery and the Applicants’ expert evidence. For the avoidance of doubt, these may include occasions when carriers (including carriers who were neither the Respondents or Other Cartel Participants) applied surcharges or corresponding increases in price as a result of other carriers applying and charging fuel surcharges or corresponding increases in price to international airfreight services but without specifically recognising or referring to those mechanisms or fuel surcharges.

The Applicants have calculated the following estimates from the revenue figures appearing in Qantas’s Joint Penalty Submissions in Proceedings Number NSD1694 of 2008 filed 28 October 2008 and BA’s Statement of Agreed Facts and Admissions in Proceedings Number NSD 1695 of 2008 filed 28 October 2008.

The Applicants estimate that on average since 1 January 2000 to date, because of the Fuel Surcharge Arrangement, the prices charged for international air freight services were 8.3% higher than they otherwise would have been.

The estimate of 8.3% is calculated by dividing the total revenue of Qantas from the imposition of fuel surcharges on international air freight services to and from Australia during the period 30 June 2001 and 30 June 2006 by the total revenue of Qantas for international air freight services to and from Australia during the period 30 June 2001 and 30 June 2006.

134.269. From in or about October 2001, on each occasion during the Period when security

surcharges or corresponding increases in price were applied to international airfreight

services, including Australian international airfreight services, by carriers, including the

Respondents, partially or wholly in accordance with the Security Surcharge

Arrangement,or as a result of:

(a) the Standard security surcharge; or

(b) the Lufthansa security surcharge,

the Security Surcharge Arrangement was a cause of the prices for those international

airfreight services being higher than the prices otherwise would have been (the “Security

Overcharge”).

101

8196443_11

PARTICULARS

The Security Overcharge comprises the security surcharges or corresponding increases in price that were applied to international airfreight services, including Australian international airfreight services.

Particulars of the occasions on which carriers applied security surcharges or corresponding increases partially or wholly in accordance with or as a result of the adjustment mechanisms or security surcharges alleged above will be provided after completion of transactional discovery and the Applicants’ expert evidence. For the avoidance of doubt, these may include occasions when carriers (including carriers who were neither the Respondents or Other Cartel Participants) applied surcharges or corresponding increases in price as a result of other carriers applying and charging fuel surcharges or corresponding increases in price to international airfreight services but without specifically recognising or referring to those mechanisms or fuel surcharges.

The Applicants estimate that on average from October 2001 to date, because of the Security Surcharge Arrangement, the prices charged for international air freight services were 5.1% higher than they otherwise would have been.

The estimate of 5.1% is calculated by dividing an estimate of the total revenue of Qantas from the imposition of security surcharges on international air freight services to and from Australia during the period 2002 to 2006 by the total revenue of Qantas for international air freight services to and from Australia during the same period.

135.270. From January 2000, the Applicants and Group Members paid identified amounts for

Australian international airfreight services at prices which were inflated by the Fuel

Overcharge.

PARTICULARS

The amounts were identified by way of invoices, or equivalent demands for payment, or terms of trade, which identified international airfreight as a separate item for which payment was due.

136.271. From about October 2001, the Applicants and Group Members paid identified

amounts for Australian international airfreight services at prices which were inflated by the

Security Overcharge.

PARTICULARS

The Applicants refer to and repeat the particulars to the preceding paragraph.

137.272. By reason of the matters alleged in paragraphs 270 and 271, the Applicants and

Group Members have suffered loss and damage, which loss and damage is continuing.

102

8196443_11

PARTICULARS

A. During the PeriodSince 2000, the Applicants have paid and continue to pay for Australian international airfreight services, pursuant to invoices, or equivalent demands for payment, or terms of trade, which identified such carriage as a separate item for which payment was due, to:

a. freight forwarders;

b. carriers of international airfreight services via agents; and

c. overseas suppliers or manufacturers of the goods air freighted who (on their own behalf) negotiated and contracted with freight forwarders for the carriage of the goods by air to Australia,

according to confidential Schedules 4 and 5 to the fifth amended statement of claim.

B. De Brett paid $ 11,591,240.38$14,436,862.38 for Australian international airfreight services during the period 6 November 2000 to 11 January 2007 Period and continuing.

C. Wisbey paid $ 230,565.40 $326,262.42 for Australian international airfreight services during the period 26 July 2000 to 11 January 2007Period and continuing.

An estimate of the loss and damage arising from the Fuel Surcharge Arrangement is the total amount paid by the First and Second Applicants for Australian international airfreight services from 1 January 2000 to date multiplied by the Fuel Overcharge (estimated at 8.3% of Australian international airfreight service charges), equalling $1,198,259.58 and $27,079.78 respectively.

An estimate of the loss and damage arising from the Security Surcharge Arrangement is the total amount paid by the First and Second Applicants for Australian international airfreight services from 1 October 2001 to date multiplied by the Security Overcharge (estimated at 5.1% of the Australian international airfreight service charges), equalling $569,423.89 and $15,069.69 respectively.

Further particulars of the Applicants’ payments and the agencies will be provided after discovery (including any third party discovery) or answers to subpoenas.

D. The loss or damage of the Applicants and each Group Member comprises:

a. the Fuel Overcharge and Security Overcharge paid by each of them; and

b. loss of use of funds in of the amounts referred to in paragraph (a) above.

138.273. The Respondents and each of them are jointly and severally liable for all loss and

damage suffered by the Applicants and Group Members and caused by:

103

8196443_11

(a) the Global Cartel Arrangement;

(b)(a) the Fuel Surcharge Arrangement; and

(b) the Security Surcharge Arrangement.

139.274. By reason of the entry of the relevant Respondents and other Airlines into the Fuel

Surcharge Implementation Understandings the Applicants and Group Members have

suffered loss and damage.

PARTICULARS

Further particulars will be provided on completion of the Applicants’ expert evidence.

275. The Respondents and each of them are jointly and severally liable for all loss and damage

suffered by the Applicants and Group Members and caused by those of the Fuel Surcharge

Implementation Understandings to which those respondents were party.

276. By reason of the entry of the relevant Respondents and other Airlines into the Security

Surcharge Implementation Understandings the Applicants and Group Members have

suffered loss and damage.

PARTICULARS

Further particulars will be provided on completion of the Applicants’ expert evidence.

104

8196443_11

277. The Respondents and each of them are jointly and severally liable for all loss and damage

suffered by the Applicants and Group Members and caused by those of the Security

Surchage Implementation Understandings to which those Respondents were party.

AND THE APPLICANTS CLAIM on their behalf and on behalf of the Group Members the

relief set out in the Fifth Sixth Amended Application filed herein.

Dated: 9 September 2011 18 September 2013

This Seventh Eighth Amended Statement of Claim was drawn by M Pesman and settled by K P

Hanscombe SC and Steven Finch SC.

Maurice Blackburn

………………………………… Maurice Blackburn

Solicitors for the Applicants

105

8196443_11

SCHEDULE OF PARTIES

DE BRETT SEAFOOD PTY LIMITED First Applicant (ACN 093 552 366) J. WISBEY & ASSOCIATES PTY LIMITED Second Applicant (ACN 001 959 851) QANTAS AIRWAYS LIMITED First Respondent (ACN 009 661 901) LUFTHANSA CARGO AKTIENGESELLSCHAFT Second Respondent SINGAPORE AIRLINES LTD Third Respondent (ARBN 1056195) SINGAPORE AIRLINES CARGO PTE LTD Fourth Respondent (ARBN 95934857) CATHAY PACIFIC AIRWAYS LIMITED Fifth Respondent (ARBN 479514) AIR NEW ZEALAND LTD Sixth Respondent (ARBN 312685) AIR NEW ZEALAND (AUSTRALIA) PTY LTD Seventh Respondent (ACN 084 974 569) JAPAN AIRLINES INTERNATIONAL CO LIMITED Eighth Respondent (ARBN 564358) BRITISH AIRWAYS PLC Ninth Respondent (ARBN 2747597) SOCIÉTÉ AIR FRANCE Cross-respondent (ARBN 000 489 074) KONINKLIJKE LUCHTVAART MAATSCHAPPIJ NV Cross-respondent (ARBN 000 067 916) MARTINAIR HOLLAND NV Cross-respondent (ARBN 069 862 862) CARGOLUX AIRLINES INTERNATIONAL SA Cross-respondent (ARBN 089 702 447) KOREAN AIR LINES CO. LTD Cross-respondent (ARBN 003 938 261)

106

8196443_11

CERTIFICATION I, BROOKE DELLAVEDOVA, certify to the Court that the factual and legal material available to me at present provides a proper basis for each allegation in the pleading. Dated: 18 September 2013

.………………………………………………

Legal Representative for the Applicants

FORM 15B CERTIFICATION (pursuant to Order 11 Rule 1B of the Rules)

I, BARRY LIPP, certify to the Court that the factual and legal material available to me at present provides a proper basis for:

(a) each allegation in the pleading;

(b) each denial in the pleading; and

(c) each non-admission in the pleading.

Date: 9 September 2011 ----------------------------------------------

Barry Lipp

Maurice Blackburn

Legal Representatives for the Applicants

107

8196443_11

SCHEDULE A - MAP OF IATA TRAFFIC CONFERENCE AREAS

108

8196443_11

SCHEDULE B – RELEVANT PERSONS

Name Carrier Position held and relevant period

AHRENS, Gabriela Lufthansa Regional Manager for Sales, Hong Kong, Taiwan, Southern China from April 2001 to August 2005 and Regional Manager, Eastern/China form December 1998 to April 2001. Ahrens reported directly to Heitmann over the period from September 2001 to April 2005, and to Wickert over the period from September 2003 to October 2004.

BAIG, Fakhre Cathay Pacific

CASCO Chairman, Cargo Manager for Cathay Pacific until January 2002

BARRIGAN, Ian British Airways

British Airways’ World Cargo division (BAWC) Vice President, Commercial for Americas from June 2000 to December 2003. In January 2004, Barrigan’s title changed to BAWC’s Area General Manager, Middle East, South Asia and Australasia; Stephen Cassidy (Cassidy) joined BAWC as Vice President of Sales, United Kingdom and Ireland. In 1999, his title changed to Regional Cargo Manager of Asia Pacific. In 2001, Cassidy was promoted to Vice President of Asia Pacific and Middle East, a position which he held until his transition to other divisions within British Airways in July 2003.

BREGGER, Harry Singapore Airlines Cargo

Manager for Western Australia from July 2002. Bregger liaised with the Cargo Managers responsible for Singapore Airlines Cargo’s freight operation in other states in Australia, and reported to C B Tan and I Tan until July 2005, then to Ee and Siaw.

CHAMBERLAIN, Graham

Qantas Regional Freight Manager for the United Kingdom and Ireland. Chamberlain reported directly to Cooper until 2003, then to Cleary.

CHRISTENSEN, Martin

Lufthansa Cargo Manager Indonesia from at least on October 2001 and Manager of Alliance Sales during October 2003 to December 2004.

CHEW, Ronnie Air NZ Cargo Manager of South East Asia from 2002 to 2006. During the Period, he reported directly to Gregg and Turner.

CHUGG, Alan Singapore Airlines Cargo

Manager for Victoria and South Australia from December 2003. Chugg liaised with the Cargo Managers responsible for Singapore Airlines Cargo’s freight operation in other states in Australia, and reported to C B Tan and I Tan until July 2005, then to Ee and Siaw.

CLEARY, Stephen Qantas General Manager of Commercial Freight from January 2005 to March 2011.

COOPER, John Qantas Employed August 1989 as Qantas Freight’s Manager of Express Service. Cooper held the position of Freight Manager of Australasia from December 1995 to October 1997. In October 1997, he was promoted to the position of General Manager of Freight Sales & Marketing and held that role until his departure in November 2003. From 1996 to September 2003 Cooper reported to Frampton.

DEVANI, Baba British Airways

Joined BAWC as an Operations Project Manager, Middle East, South Asia and Africa in December 1997. His title changed to Area Manager, New Delhi in June 1999, then to Area Manager, Middle East, South East Asia and Australasia in April 2002. In August 2003, Devani was promoted to Regional Vice President, Asia Pacific and Middle East, a position which he held until February 2006. During the Period, Devani was responsible for BAWC’s operation in South Asia, the Middle East, Africa, South East Asia and Australasia.

EALAM, Bruce Qantas Freight Manager for Thailand and Vietnam, reporting to Pang, until 2004 or 2005 when he was then transferred to Australia and appointed to the position of Freight Sales Manager for Victoria, Tasmania and South Australia.

EE, Patrick Singapore Airlines Cargo

General Manager for Australia and New Zealand from 2005 to 19 October 2007. Ee reported to Freddy Khoo.

109

8196443_11


ELMSLY, Peter Air NZ Held the position of General Manager of Cargo at Air New Zealand from 2000 to March 2001 and the position of Vice President of Cargo from April 2001 to 2003. Elmsly was then transferred from Australasia to Japan and held the position of General Manager of the Eastern Region from 2003 to March/April 2003. Before his departure from Air New Zealand, he was transferred to China and held the position of General Manager of China from May 2006 to November 2007.

FINEMORE, Clive Qantas Manager of Freight Pricing from January 1987 to October 2008, and Qantas Freight’s delegate to the IATA conferences.

FLEISCHER, Carina

British Airways

Joined BAWC in May 1998. In November 1999, Fleischer succeeded Cassidy and was appointed to the position of Vice President of Sales, the United Kingdom and Ireland. Fleischer reported directly to Keith Packer until her departure in March 2002.

FRAMPTON, Peter Qantas Executive General Manager from March 1994 to July 1996, appointed to the position of Group General Manager of Freight in July 1996. He held this position until his departure in September 2003.

GOH, Maggie Air NZ Cargo Manager of Asia/Japan from 1999 to April 2003. During the Period, she reported directly to Gregg and Turner.

GREGG, Murray Air NZ Joined Air New Zealand in 1970s and held the position of Manager of Cargo Sales during the relevant period. He took over Elmsly’s role as an acting General Manager for a brief period in 2003/2004.

HAMBURGER, Ludwig

Air NZ Cargo Regional Manager of the United Kingdom and Europe from 1999 to 2006. During the Period, he was responsible for Air New Zealand’s freight operation in the United Kingdom and Europe and he reported directly to Gregg.

HEITMANN, Axel Lufthansa Lufthansa’s General Manager of Pricing from July 2001 to 2006. From July 2001 to April 2003, Heitmann reported directly to Lufthansa’s Vice President of Marketing, Harald Eisenaecher.

HO, Johnny Qantas Sales Supervisor from January 2000 to 2003 and Freight Manager for Hong Kong/General Sales Agent for North East Asia from 2004 to 2006. Ho reported directly to Wong until 2003, then to Pang until 2006.

HURLEY, Roy British Airways

Held the position of Industry Affairs and Business Continuity Manager since 1999. During the Period, Hurley was also BAWC accredited representative to IATA.

JACOBSON, Paul Singapore Airlines Cargo

Manager for New South Wales until 2004 when his role was succeeded by Maree O’Sullivan. Jacobson reported directly to C B Tan and I Tan.

KEMP, Matthew British Airways

BAWC’s Global Pricing and Distribution Manager.

KHOO, Freddy Singapore Airlines Cargo

Regional Vice President for Africa and Asia and Vice President for Alliances from 2003 to August 2005. In September 2005 Khoo succeeded C B Tan as Regional Vice President of South East Asia and South West Pacific, a position which he currently holds.

LAWLESS, Eamon Air NZ Regional Cargo Manager of Australia until May 2000.

LEUNG, Kwong Kuen

Cathay Pacific

Manager of Cargo Sales Development, Hong Kong and China from February 2003 to August 2003 and Chairman of the Hong Kong Board of Airline Representatives Cargo Sub Committee (HK BAR-CSC) from February 2000 to August 2003.

LIM, Soon Leng Singapore Airlines Cargo

Regional Vice President of the Americas from at least December 2004 and Regional Vice President of the South West Pacific from at least March 2003.

110

8196443_11


LIU, Christine Cathay Pacific

Manager of Cargo Sales, Hong Kong and China from July 2005 to July 2008 and Chair of the HK BAR -CSC from July 2005 to around October 2006.

MAK, Chung Cathay Pacific

Manager of Cargo Sales Development, Hong Kong and China from August 1997 to December 1999 and Chairman of the HK BAR-CSC until his departure from Cathay Pacific in February 2000.

MANGELSDORF, Garry

Qantas Regional Freight Manager for Australasia and Africa until December 2008. Mangelsdorf reported directly to Cooper until 2003, and then to Cleary.

MCCAFFREY, Bruce

Qantas Regional Freight Manager until 2000, Vice President of Freight, Americas until 2008. McCaffrey reported directly to Cooper and Frampton until 2003, and then to Cleary.

NASSER, Shokat Singapore Airlines Cargo

Sales Operations Manager for the Gulf region from 1985 to 2006.

NEOH, EinTech Singapore Airlines Cargo

Senior Manager Global Distribution and Sales from 2006.

NGAI, Martin Air NZ Cargo Manager of Hong Kong from 2000 to 2006. During the Period, he was responsible for Air New Zealand’s freight operation in Hong Kong and reported directly to Gregg and Turner.

NOBUYUKI, Henmi

Air NZ Cargo Manager of Japan and Korea from January 2000 to September 2006. During the Period, he was responsible for Air New Zealand’s freight operation in Japan and Korea and reported directly to Gregg and Turner.

OBLADEN, Erwin Lufthansa Senior Vice President of Sales from May 2001 to June 2003, and Senior Vice Present, Special Representative of the Executive Board for Asia from December 2003 to January 2006. Over the period from 2001 to April 2003, Obladen reported directly to Lufthansa’s Vice President of Marketing, Harald Eisenaecher.

O’SULLIVAN, Maree


Succeeded Jacobson as Manager for New South Wales, a position which she currently holds. O’Sullivan reported directly to Ee and Siaw.

PACKER, Keith British Airways

BAWC’s Senior Vice President, Global Sales and Marketing from November 2000 to January 2004. Packer was appointed to BAWC’s Senior Vice President, Commercial in February 2004 and held this role until his departure in February 2007. Prior to these appointments, Packer was BAWC’s Regional Cargo Manager of Europe from March 1999 to November 2000. Packer was a member of British Airways Cargo Commercial Group (BACCG). The BACCG was a group which met weekly (including participation by telephone) and included various managers within BAWC, including Packer, the Regional Vice Presidents and Kemp.

PANG, Harold Qantas Regional Freight Manager for Asia from 2004 to 2006, currently Head of Asia Freight and Business Development. Pang reported directly to Cooper until 2003, then to Cleary.

RAGHAVAN, Sudheer


Senior Vice President, Sales and Marketing until September 2007.

RICHARDS, Ian Singapore Airlines Cargo

Manager for Queensland from October 2003 to November 2010. Richards reported directly to C B Tan and I Tan until July 2005, then to Ee and Siaw.

ROS, Nazim Singapore Airlines Cargo

Assistant Manager, Planning and Development until February 2004, when his title changed to Assistant Manager of Industry. Ros was also the Secretary of the Singapore BAR-CSC until February 2004.

111

8196443_11


SAIF, Jassim Emirates Vice President, Cargo and UAE CASCO Chairman from at least on 1 June 2004.

SONG, Robert Air NZ Joined Air New Zealand in 1996. Over the period from 1996 until his departure, he held the position of Regional Cargo Manager in Asia and Australasia. During the Period, he was responsible for Air New Zealand’s freight operation in Australia and reported directly to Turner.

SHIGENORI, Yamada

Qantas Regional Freight Manager for Japan and Korea. Shigenori reported directly to Cooper and Frampton until 2003, and then to Cleary.

SIAW, Adelyn Singapore Airlines Cargo

Joined Singapore Airlines Cargo as Sales Executive, Victoria and Tasmania, from 2003 to July 2005. She was then promoted to Regional Marketing Manager of South West Pacific in July 2005. Over the period from 2003 to 2007, Siaw was responsible for Singapore Airlines Cargo’s marketing in Australia and she reported directly to Khoo.

SIEBENROCK, Juergen

Lufthansa Vice President for the Americas from 2001 to 2003; Vice President Sales for the Americas from June 2003 – 2005 and Head of Area Management Sales for Germany from July 2006.

TAN, Clinton (C Tan)


General Manager for Sales, Singapore since 2004 and Chairman of the Singapore BAR-CSC from October 2004. In 2003/2004, C Tan was based in Hong Kong and held the position of Singapore Airlines’ Deputy General Manager, Hong Kong and Macau.

TAN, Chong Beng (C B Tan)


Regional Vice President for South West Pacific from 2004 to August 2005, when his title changed to Senior Manager of Industry Affairs and Mail.

TAN, Irwin (I Tan) Singapore Airlines Cargo

Regional Marketing Manager for South West Pacific from December 2003 to July 2005.

TAN, Winston Cathay Pacific

Cargo Manager for Singapore from 1998/1999.

TANG, Kenny Cathay Pacific

General Manager Cargo until 2004.

TURNER, Mike Air NZ Cargo Route Business Manager from 2002 to 2006. He held the position of Cargo Alliance and Freighter Manager prior to 2002. During the Period, he was responsible for Air New Zealand’s freight operation throughout the world.

WICKERT, Anja Lufthansa Senior Manager of Pricing from June 2003 to December 2005. During the Period, Wickert work closely with and reported directly to Heitmann.

WONG, Raymond (Wong)

Qantas Regional Freight Manager for Hong Kong until 2003. Wong reported directly to Barrie until 2000, then to Cooper and Pang until 2003.

WONG, Tom (T Wong)

Cathay Pacific

Manager of Cargo Sales Development, Hong Kong and China from August 2003 to July 2005 and Chair of the HK BAR-CSC from August 2003 to July 2005.

112

8196443_11

SCHEDULE C - SINGAPORE UNDERSTANDING

The Applicants say that both the existence of the Singapore Understanding, and that the

Respondents gave effect to the Singapore Understanding, are to be inferred from the conduct and

documents set out below.

April 2002 Singapore Fuel Surcharge Survey

1. On or about 9 April 2002, Ros emailed the other members of the Singapore BAR-CSC,

including each of the other Respondents to:

(a) advise that Lufthansa had informed its customers of its intention to impose a fuel

surcharge of SGD0.08/kg on the supply of international airfreight services from

Singapore effective 15 April 2002;

(b) advise that Singapore Airlines Cargo had yet to decide about imposing a fuel

surcharge; and

(c) ask whether or not those carriers would be imposing a fuel surcharge, and if they

intended imposing, in what amount and the implementation date (which responses, it

was stated, would be compiled and disseminated by email to all carriers by the end

of the week).

2. At least some of the recipients of the email referred to in paragraph 1 responded to

Singapore Airlines Cargo to:

(a) advise that they intended imposing a fuel surcharge of a particular amount from a

particular implementation date;

DOCUMENTS

A. Email dated 10 April 2002 from Alfred Quek (KLM) to the other members of the Singapore BAR-CSC, including each of the other Respondents.

B. Email dated 10 April 2002 from Trina Chiang (British Airways) to Ros.

C. Email dated 11 April 2002 from Matt Butler (British Airways) to the other members of the Singapore BAR-CSC, including each of the other Respondents.

D. Email dated 11 April 2002 from Wee Hian Peng (Cargolux) to Ros.

113

8196443_11

E. Other emails or communications from the other members of the Singapore BAR-CSC to Singapore Airlines Cargo as to their fuel surcharge intentions, as recorded in the results of the fuel surcharge survey circulated by Singapore Airlines Cargo, referred to in paragraph 3.

(b) advise that they were waiting to see whether other carriers would impose a fuel

surcharge before deciding whether their carrier would impose a fuel surcharge; or

DOCUMENTS

Email dated 10 April 2002 from Roger Foo of Nippon Cargo to Ros.

(c) advise that they were waiting for other carriers, including Singapore Airlines Cargo,

to indicate what fuel surcharge those other carriers would impose before their carrier

would follow Singapore Airlines Cargo and the other carriers in also imposing that

fuel surcharge.

DOCUMENTS

A. Email dated 9 April 2002 from Goh (Air New Zealand) to Ros.

B. Email dated 10 April 2002 from Roland Quah of Eva Air to the other members of the Singapore BAR-CSC, including each of the other Respondents.

C. Email dated 10 April 2002 from Jeffrey Quek of China Airlines to Ros.

D. Email dated 11 April 2002 from Winston Tan (Cathay Pacific) to the other members of the Singapore BAR-CSC including each of the other Respondents.

3. The results of a survey of fuel surcharge amounts to be charged by carriers and

implementation dates were sent to various carriers, including each of the other

Respondents, by Ros by email dated 15 April 2002.

4. In response to the circulated results of the fuel surcharge survey referred to in the previous

paragraph, at least some carriers provided further information about their fuel surcharge

intentions.

DOCUMENTS

A. Email dated 15 April 2002 from W Tan to the other members of the Singapore BAR-CSC, including each of the other Respondents.

B. Email dated 15 April 2002 from Ibrahim Altway of Lufthansa to Ros.

114

8196443_11

C. Email dated 16 April 2002 from Roland Quah of Eva Air to the other members of the Singapore BAR-CSC, including each of the Respondents.

D. Other emails or communications from the other members of the Singapore BAR-CSC, to Singapore Airlines Cargo as to their fuel surcharge intentions, as recorded in the results of the fuel surcharge survey attached to the minutes of the Singapore BAR-CSC meeting on 25 April 2002, referred to in paragraph 5.

5. At the meeting of the Singapore BAR-CSC held on 25 April 2002, which was attended by

each of the Respondents, it was stated, “[d]ue to escalating jet fuel prices, most carriers

will be implementing fuel surcharge in May 2002”.

6. Attendees included Soo Tin Foo and Nazim Ros for Singapore Airlines Cargo, Winston

Tan and Anne Tan (Cathay Pacific) and Ronnie Chew (Air New Zealand).

7. The results of a survey of fuel surcharge amounts being charged by carriers and

implementation dates were annexed to the Singapore BAR-CSC minutes which were sent

to the other members of the Singapore BAR-CSC, including each of the other

Respondents, by Jenny Lee (Singapore Airlines Cargo) by email dated 14 May 2002.

8. On or about 22 April 2002, Ros emailed representatives of other carriers, including each of

the other Respondents to advise that Singapore Airlines Cargo would impose a fuel

surcharge of SGD0.10/kg on the supply of international airfreight services from Singapore,

effective 1 May 2002.

9. Respondents imposed the following fuel surcharge (SGD/kg):


Qantas 0.10 1 May 02 – 30 Sep 02

Lufthansa 0.08 25 Apr 02 – 22 Sep 02

Singapore Airlines Cargo 0.10 1 May 02 to 30 Sep 02

Cathay Pacific 0.08 to TC1 and TC2; 0.05 to TC3 1 May 02 - 30 Sep 02

Air New Zealand 0.10 1 May 02 - 30 Sep 02

British Airways 0.10 23 Apr 02 – 1 Oct 02

October 2002 Singapore Fuel Surcharge Survey

10. On or about 12 September 2002, Ros emailed representatives of various other carriers

including each of the other Respondents:

115

8196443_11

(a) To ask whether those carriers were intending to increase the fuel surcharge that they

charged their Customers and the proposed date of implementation (which responses,

it was stated, would be tabulated and despatched to everyone by email); and

(b) advise that Singapore Airlines Cargo had decided to impose a fuel surcharge of

SGD0.17/kg from 1 October 2002.

11. At least some of the recipients of the email referred to in paragraph 10 responded by

confirming that they would follow the fuel surcharge increase proposed by Singapore

Airlines Cargo.

DOCUMENTS

A. Email dated 12 September 2002 from Eugene Ong of Northwest Airlines to the other members of the Singapore BAR-CSC, including each of the Respondents.

B. Email dated 12 September 2002 from Alfred Quek (KLM) to the other members of the Singapore BAR-CSC, including each of the Respondents.

C. Email dated 13 September 2002 from Jeffrey Lim of Thai Airways to Ros.

D. Email dated 16 September 2002 from Winston Sng of Eva Air to the other members of the Singapore BAR-CSC, each of the Respondents.

E. Email dated 30 September 2002 from James Loh of Turkish Airlines to the other members of the Singapore BAR-CSC, including each of the Respondents.

F. Email dated 3 October 2002 from Richard Chan of Myanmar Airways International to the other members of the Singapore BAR-CSC, including each of the Respondents.

G. Other emails or communications from the other members of the Singapore BAR-CSC including Cathay Pacific to Singapore Airlines Cargo as to their fuel surcharge intentions, as recorded in the results of the fuel surcharge surveys circulated by Singapore Airlines Cargo on 1 and 3 October 2002.

12. The results of a survey of fuel surcharge amounts to be charged by carriers and

implementation dates were sent to various carriers including each of Lufthansa, Cathay

Pacific, Air New Zealand and British Airways by Ros by emails dated 1 October 2002 and

3 October 2002.

DOCUMENTS

The emails of Nazim Ros of 1 and 3 October 2002 were sent to each of Ibrahim Altway (Lufthansa), Steven Tan (Singapore Airlines Cargo), Winston Tan

116

8196443_11

(Cathay Pacific), Maggie Goh (Air New Zealand) and Matthew Butler (British Airways).

13. At the meeting of the Singapore BAR-CSC, which was attended by each of Lufthansa,

Singapore Airlines, Cathay Pacific, Air New Zealand and British Airways held on 24

October 2002 it was stated that “most carriers have increased their fuel surcharge to $0.17

per kg in October 2002”.

14. The results of a survey of fuel surcharge amounts being charged by carriers and

implementation dates were annexed to the minutes which were sent to various carriers

including each of Lufthansa, Cathay Pacific, Air New Zealand and British Airways by

Jenny Lee (Singapore Airlines Cargo) by email dated 5 November 2002.

15. The survey results were also sent to various carriers including each of Lufthansa, Cathay

Pacific, Air New Zealand and British Airways by Ros by email dated 21 January 2003.

16. On or about 12 September 2002, Singapore Airlines Cargo announced it would increase its

fuel surcharge to SGD0.17/kg effective 1 October 2002.



Lufthansa 0.17 23 Sep 02 to 2 Mar 03

Qantas 0.17 1 Oct 02 to 16 Mar 03

Singapore Airlines Cargo 0.17 1 Oct 02 to 28 Feb 03

Cathay Pacific 0.17 to TC1 and TC2; and 0.10 to TC3 1 Oct 02 to 28 Feb 03

Air New Zealand 0.17 1 Oct 02 to 28 Feb 03

British Airways 0.17 1 Oct 02 to 16 Mar 03

February 2003 Singapore Fuel Surcharge Survey

18. On or about 14 February 2003 Ros emailed representatives of members of the Singapore

BAR-CSC, including each of Lufthansa, Cathay Pacific, Air New Zealand and British

Airways to:

(a) advise that, in view of the increases in the fuel index, Singapore Airlines Cargo had

decided to impose a fuel surcharge of SGD0.25/kg from 1 March 2003; and

(b) ask whether those other carriers had similar plans.

117

8196443_11

19. At least some of the recipients of the email referred to in paragraph 18 responded by

confirming that they would follow the fuel surcharge increase proposed by Singapore

Airlines Cargo.

DOCUMENTS

A. Email dated 14 February 2003 from Darren Tan (Air France) to the other members of the Singapore BAR-CSC, including each of the Respondents.

B. Email dated 17 February 2003 from Roger Foo on behalf of Nippon Cargo and All Nippon Airways to the other members of the Singapore BAR-CSC, including each of the Respondents.

C. Email dated 18 February 2003 from Tay Swee Huat of Japan Airlines to the other members of the Singapore BAR-CSC, including each of the other Respondents.

D. Email dated 18 February 2003 from Wee Hian Peng (Cargolux) to the other members of the Singapore BAR-CSC, including each of the Respondents.

20. On or about 14 February 2003, Singapore Airlines Cargo announced it would increase its

fuel surcharge to the following amounts effective 1 March 2003:

(a) SGD0.25/kg on the supply of international airfreight services from Singapore to all

destinations except South East Asia; and

(b) SGD0.20/kg on the supply of international airfreight services from Singapore to

South East Asia.


118

8196443_11

Respondent Amount From in our about, - in or about

Lufthansa 0.28

0.19

3 Mar 03 - 5 May 03

6 May 03 - 17 Dec 03

Qantas 0.25

0.38

0.25

0.17

17 Mar 03 – 6 Apr 03

7 Apr 03 - 21 Apr 03

22 Apr 03 – 30 Apr 03

1 May 03 to 22 Dec 03


0.25 to all destinations except South East Asia; and

0.20 to South East Asia.

1 Mar 03 - 18 Mar 03

0.38 to destinations except South East Asia; and

0.25 to South East Asia.

19 Mar 03 - 15 Apr 03

0.17 16 Apr 03 - 22 Dec 03

Cathay Pacific 0.25 to TC1 and TC2; and 0.15 to TC3

0.38 to TC1 and TC2; and 0.22 to TC3


1 Mar 03 - 6 Apr 03

7 Apr 03 – 30 Apr 03

1 May 03 – 30 Dec 03

Air New Zealand 0.25

0.17

1 Mar 03 - 15 Apr 03

16 Apr 03 – 22 Dec 03

British Airways 0.25

0.38

0.25

0.17

17 Mar 03 – 16 Apr 03

7 Apr 03 – 23 Apr 03

24 Apr 03 – 7 May 03

8 May 03 to 18 Dec 03

December 2003 BAR-CSC Meeting

22. At an extraordinary meeting of the Singapore BAR-CSC held on 8 December 2003:

(a) Singapore Airlines Cargo advised each of the other carriers present (being Air New

Zealand, Air France, Royal Brunei Airlines, China Airlines, Cargolux, Emirates,

Japan Airlines, KLM, SilkAir, Philippine Airlines and Thai Airways) and each of the

carriers to which the minutes were subsequently sent (being the members of the

Singapore BAR-CSC including each of the Respondents) that, effective 23

December 2003, it proposed to increase its fuel surcharge :

(i) to SGD0.25/kg on the supply of international airfreight services from

Singapore to TC1, TC2 and North Asia; and

(ii) to SGD0.20/kg on the supply of international airfreight services to TC3

excluding North Asia;

119

8196443_11

(b) the carriers present discussed certain aspects of the proposed fuel surcharge increase

and whether particular areas, including North Asia, could sustain the proposed

increase;

(c) Carriers present, including at least China Airlines and Japan Airlines, agreed to

impose at least some of the amounts imposed by Singapore Airlines Cargo; and

(d) it was agreed that a survey would be sent and completed by the members of the

Singapore BAR-CSC setting out their current and proposed fuel surcharges

including implementation dates for the increase and that the results of the survey

would be disseminated.

DOCUMENTS

A. The Singapore BAR-CSC meeting held on 8 December 2003 was attended by Tan Kai Ping and Nazim Ros for Singapore Airlines Cargo and Ronnie Chew for Air New Zealand.

B. The minutes of the Singapore BAR-CSC meeting held on 8 December 2003 record that:

a. the meeting was held to “discuss and seek feedback from BAR carriers on their plans for fuel surcharge following sustained increase in fuel prices and announcements in other markets of increases in fuel surcharge”;

b. the chairman of the Singapore BAR-CSC, Tan Kai Ping (Singapore Airlines Cargo), announced that Singapore Airlines Cargo planned to apply a fuel surcharge of SGD0.25/kg for TC1 and TC2 and SGD0.20/kg for TC3;

c. following discussions about the impact in North Asia, Singapore Airlines Cargo, Japan Airlines and China Airlines “agreed to apply the full surcharge of SGD0.25 per kg for North Asia”; and

d. it was agreed that a survey of fuel surcharge amounts and implementation dates would be circulated and the results would be disseminated.

C. The minutes of the Singapore BAR-CSC meeting were circulated by email of Jenny Lee dated 11 December 2003 to the members of the Singapore BAR-CSC including each of the Respondents and specifically Bruce Ealam (Qantas), Ibrahim Altway (Lufthansa), Nazim Ros, Fabian Abrose and Han Soo Tan (Singapore Airlines Cargo), Winston Tan (Cathay Pacific), Ronnie Chew (Air New Zealand) and Trina Chiang (British Airways).

D. Further, the results of a survey of fuel surcharge amounts being charged by carriers and implementation dates were circulated by email dated 22

120

8196443_11

December 2003 from Ros to members of the Singapore BAR-CSC, including each of the other Respondents and specifically Ibrahim Altway (Lufthansa), Shailja Jain (Lufthansa), Bruce Ealam (Qantas), Winston Tan (Cathay Pacific), Ronnie Chew (Air New Zealand) and Trina Chaing (British Airways).

E. The results of the completed survey were circulated by email dated 29 December 2003 from Ros to members of the Singapore BAR-CSC, including each of the other Respondents and specifically Ibrahim Altway and Shailja Jain (Lufthansa), Bruce Ealam (Qantas), Wintson Tan (Cathay Pacific), Ronnie Chew (Air New Zealand) and Trina Chaing (British Airways).

23. Following the Singapore BAR-CSC meeting held on 8 December 2003 and as a

consequence of the matters alleged in the previous paragraph, Air New Zealand:

(a) determined that, with effect from 23 December 2003, it would impose a fuel

surcharge of:

(i) SGD0.25/kg on the supply of international airfreight services from Singapore

to TC1 and TC2; and

(ii) SGD0.20/kg on the supply of international airfreight services from Singapore

to TC3;

(b) advised Singapore Airlines Cargo of the increase in its fuel surcharge; and

(c) imposed the fuel surcharge referred to in this paragraph with effect from 23

December 2003.

DOCUMENTS

Air New Zealand’s intention to increase its fuel surcharge as alleged is recorded in the email from Ros dated 22 December 2003.

24. On or about 9 December 2003, Singapore Airlines Cargo announced it would increase its

fuel surcharge to the following amounts effective 23 December 2003:

(a) SGD0.25/kg on the supply of international airfreight services from Singapore to

TC1, TC2 and North Asia; and

(b) SGD0.20/kg on the supply of international airfreight services from Singapore to TC3

(excluding North Asia).

121

8196443_11

25. The minutes of the Singapore BAR-CSC meeting were circulated as agreed to the

members of the Singapore BAR-CSC, including each of the Respondents, by email dated

11 December 2003.

26. By no later than about 11 December 2003, each of the other Respondents was aware of:

(a) the agreement of some carriers as to the fuel surcharges that Singapore Airlines

Cargo and those carriers would impose; and

(b) Singapore Airlines Cargo’s intention to collect from members of the Singapore

BAR-CSC their pricing intentions and implementation dates in respect of fuel

surcharges and to relay that information to other members.

27. The Respondents announced the following fuel surcharges (SGD/kg):

Respondent Date of Announcement (on or about)

Amount Effective

Qantas 12 Dec 03 0.25 for TC1, TC2, North Asia and Australia; and

0.20 for TC3 excluding North Asia

23 Dec 03

Lufthansa 5 Dec 03 0.31 18 Dec 03


9 Dec 03 0.25 to TC1, TC2 and North Asia; and

0.20 to TC3 excluding North Asia

23 Dec 03

Cathay Pacific 12 Dec 03 0.25 to TC1 and TC2; and

0.15 to TC3

1 Jan 04

Air New Zealand 15 Dec 03 0.25 to TC1 and TC2; and

0.20 to TC3

23 Dec 03

British Airways 4 Dec 03 0.27 18 Dec 03

28. The Respondents imposed the following fuel surcharges (SGD/kg) on the supply of

international airfreight services from Singapore:

122

8196443_11

Respondent Amount From on our about, to on or about

Qantas 0.25 for TC1, TC2, North Asia and Australia

0.20 for TC3 excluding North Asia

23 Dec 03 to 4 May 04

Lufthansa 0.31 18 Dec 03 to 9 May 04

Singapore Airlines Cargo 0.25 to TC1, TC2 and North Asia; and


23 Dec 03 to 11 May 04

Cathay Pacific 0.25 to TC1 and TC2; and

0.15 to TC3

1 Jan 04 to 15 May 04

Air New Zealand 0.25 to TC1 and TC2; and

0.20 to TC3

23 Dec 03 to 15 May 04

British Airways 0.27 18 Dec 03 to 13 May 04

April 2004 Singapore BAR-CSC Meeting

29. At an extraordinary meeting of the Singapore BAR-CSC held on 28 April 2004:

(a) Singapore Airlines Cargo advised each of the other carriers present (being Air

France, China Airlines, Cargolux, KLM and Lufthansa) and each of the carriers to

which the minutes were subsequently sent (being the members of the Singapore

BAR-CSC, including each of the other Respondents) that, effective 12 May 2004,

Singapore Airlines Cargo proposed to impose a fuel surcharge:

(i) SGD0.35/kg on the supply of international airfreight services from Singapore

to TC1, TC2 and North Asia; and

(ii) no change to the supply of international airfreight services from Singapore to

TC3 (excluding North Asia);

(b) other carriers, including Lufthansa and Cargolux, advised those present at the

meeting of the fuel surcharges that those carriers intended to implement, which fuel

surcharges were not below the fuel surcharge being proposed by Singapore Airlines

Cargo; and

(c) Air France and KLM stated that they would get internal clearance before imposing

their increased fuel surcharges.

DOCUMENTS

A. The minutes of the earlier meeting of the Singapore BAR-CSC, held on 22 April 2004, which was attended by Bruce Ealam (Qantas), Ibrahim Altway (Lufthansa), Kai Ping Tan and Jimmy Ng (Singapore Airlines Cargo), Winston Tan (Cathay Pacific), Ronnie Chew (Air New Zealand), Trina

123

8196443_11

Chiang (British Airways) and others record that the chairman of the Singapore BAR-CSC, Tan Kai Ping (Singapore Airlines Cargo), stated that there was no impetus for an increase in the fuel surcharge but that Singapore Airlines Cargo will keep all informed should there be a revision.

B. A further meeting was then called for 28 April 2004 to inform members of Singapore Airlines Cargo’s intentions to revise the fuel surcharge structure and also to seek feedback from BAR carriers on their plans for the fuel surcharges, following sustained increases to jet fuel in recent months at which time Singapore Airlines Cargo advised the other carriers present of its proposed fuel surcharge increase.

C. Further, formal minutes of the Singapore BAR-CSC meetings held on 22 and 28 April 2004 were circulated to members of the Singapore BAR-CSC, including each of the other Respondents, by emails both dated 10 May 2004 from Jenny Lee and Jimmy Ng both of Singapore Airlines Cargo.

D. The email from Jimmy Ng also attached a survey of the fuel surcharge and asked that it be completed and returned. The results of the survey were sent to the members of the Singapore BAR-CSC by an email from Jimmy Ng dated 28 May 2004.

E. At the Singapore BAR-CSC and LIDC-C meetings, both of 23 July 2004, which were attended by the Secretary, Jimmy Ng, and the Chairman, Clinton Tan (Singapore Airlines Cargo), Choo Koon Seng and Anne Tan (Cathay Pacific), Ronnie Chew (Air New Zealand) and Lata Narayan (British Airways) and others, Clinton Tan requested a greater level of co-operation for future surveys in view of the need for greater transparency with regards to these surcharges.

30. Informal minutes of the Singapore BAR-CSC meeting held on 28 April 2004 were

circulated to the Singapore BAR-CSC members, including each of the other Respondents,

by email dated 28 April 2004 from Jimmy Ng (Singapore Airlines Cargo).

31. As a consequence of the matters alleged in paragraphs 29 and 30, each of the Respondents

determined that it would impose a fuel surcharge of the amount indicated in the table in the

next paragraph effective from the date also indicated.

32. The Respondents announced the following fuel surcharges (SGD/kg) on the supply of

international airfreight services from Singapore:

124

8196443_11


Amount Effective

Qantas 4 May 04 0.35 to TC1, TC2 and North Asia;

0.25 to South West Pacific and intra-Asia

12 May 04

Lufthansa 27 Apr 04 0.40 10 May 04

Singapore Airlines Cargo 28 Apr 04 0.35 to TC1, TC2 and North Asia; and

0.20 to TC3 (excluding North Asia).

12 May 04

Cathay Pacific 30 Apr 04 0.35 to TC1 and TC2; and

0.20 to TC3.

16 May 04

Air New Zealand 10 May 04 0.35 to TC1 and TC2; and

0.20 to TC3.

16 May 04

British Airways 29 Apr 04 0.35 13 May 04

33. The Respondents imposed the following fuel surcharges on the supply of international

airfreight services from Singapore:

Respondent Amount From on or about, - on or about

Qantas 0.35 to TC1, TC2 and North Asia

0.25 to South West Pacific and intra-Asia

12 May 04 – 16 Oct 04

Lufthansa 0.40

0.51

10 May 04 – 6 Jun 04

7 Jun 04 – 4 Oct 04



12 May 04 - 10 Oct 04


0.20 to TC3

16 May 04 - 15 Oct 04

Air New Zealand 0.35 to TC1 and TC2; and

0.20 to TC3

16 May 04 - 15 Oct 04

British Airways 0.36 13 May 04 – 1 Nov 04

October 2004

34. At an extraordinary meeting of the Singapore BAR-CSC held on 24 September 2004:

(a) Singapore Airlines Cargo advised each of the other carriers present (being Air New

Zealand, Cathay Pacific, Air France, Finnair, China Airlines, Cargolux, Japan

Airlines, KLM, Thai Airways and SriLankan Airlines) and each of the carriers to

which the minutes were subsequently sent (being the members of the Singapore

BAR-CSC including each of the other Respondents) that, effective 11 October 2004,

it proposed to increase its fuel surcharge:


Singapore to TC1, TC2 and North Asia; and

125

8196443_11

(ii) to SGD0.25/kg on the supply of international airfreight services from

Singapore to TC3 (excluding North Asia);

(b) Cathay Pacific advised the representatives of the other carriers present at the

meeting, that it intended to increase its fuel surcharges effective 11 October 2004:


Singapore to TC1 and TC2; and

(ii) to SGD0.25/kg on the supply of international airfreight services from

Singapore to TC3;

(c) the carriers present discussed certain aspects of the proposed fuel surcharge increase

and whether particular areas could sustain the increase proposed by Singapore

Airlines Cargo; and

(d) Singapore Airlines Cargo stated that it would consider that feedback and review its

proposed fuel surcharge adjustments.

DOCUMENTS

The minutes of the meeting of the Singapore BAR-CSC held on 24 September 2004 record that:

A. The meeting was attended by Angeline Yap (Air New Zealand), Winston Tan (Cathay Pacific) and BengHuat Sim and Bo Liu for Singapore Airlines Cargo;

B. the meeting was convened to discuss and seek feedback from Singapore BAR CSC carriers on their plans for the fuel surcharge in view of the soaring fuel price and announcements of fuel surcharge increases in other markets;

C. the Acting Chairman of the Singapore BAR-CSC, Sim BengHuat (Singapore Airlines Cargo) stated that Singapore Airlines Cargo intended to increase the fuel surcharge that it charged its Customers in the amounts noted; and

D. other carriers queried whether the amounts charged to North Asia and TC3 should be different amounts to those proposed and Singapore Airlines Cargo stated that “based on the feedbacks [sic] from the meeting, SQ [Singapore Airlines Cargo] will review its fuel surcharge adjustments”.

35. Subsequently to the meeting referred to in the previous paragraph, minutes of the meeting

were sent to the members of the Singapore BAR-CSC including each of the other

Respondents by email from Jenny Lee (Singapore Airlines Cargo).

126

8196443_11

DOCUMENTS

Email from Jenny Lee sent to Bruce Ealam (Qantas), Ibrahim Altway (Lufthansa), Jimmy Ng, Clinton Tan, Fabian Ambrose and Han Soo Tan (Singapore Airlines Cargo), Winston Tan (Cathay Pacific), Ronnie Chew (Air New Zealand) and Trina Chiang (British Airways).

36. By a subsequent email from Liu Bo (Singapore Airlines Cargo) on or about 27 September

2004) to the members of the Singapore BAR-CSC including each of the other Respondents

Singapore Airlines Cargo:

(a) confirmed that it would impose the fuel surcharge increase referred to in paragraph

34;

(b) circulated the results of a survey of fuel surcharge amounts to be charged by some

carriers including Cathay Pacific, Lufthansa and Singapore Airlines Cargo (Air New

Zealand result showing 'N.A.') and implementation dates; and

(c) asked the other members of the Singapore BAR-CSC for their fuel surcharge

intentions, which would be collated and circulated to the members of the Singapore

BAR-CSC.

DOCUMENTS

Email from Liu Bo (Singapore Airlines Cargo) on or about 27 September 2004 to Bruce Ealam (Qantas), Ibrahim Altway (Lufthansa), Jimmy Ng, Clinton Tan, Fabian Ambrose and Han Soo Tan (Singapore Airlines Cargo), Winston Tan (Cathay Pacific), Ronnie Chew (Air New Zealand) and Trina Chiang (British Airways).

37. Each of the Respondents:

(a) determined that it would impose a fuel surcharge of the amount indicated in the table

in the next paragraph effective from the date also indicated;

(b) advised Singapore Airlines Cargo of the increase in its fuel surcharge; and

(c) imposed the surcharge.

38. The Respondents announced the following fuel surcharges on the supply of international


127

8196443_11


Amount Effective

Qantas 8 Oct 04 0.50 for TC1, TC2 and North Asia

0.30 for South West Pacific and Denpasar

16 Oct 04

Lufthansa 21 Sep 04 0.62 4 Oct 04


27 Sep 04 0.50 to TC1, TC2 and North Asia; and


11 Oct 04

Cathay Pacific 30 Sep 04 0.50 to TC1 and TC2; and 0.25 to TC3 11 Oct 04

Air New Zealand 1 Oct 04 0.50 to TC1 and TC2; and 0.25 to TC3 16 Oct 04

British Airways 20 Oct 04 0.60 1 Nov 04

39. The Respondents imposed the following fuel surcharges on the supply of international


Respondent Amount Period (from on or about to on or about)

Qantas 0.50 for TC1, TC2 and North Asia

0.30 for South West Pacific and Denpasar

16 Oct 04 – 31 Oct 04

Lufthansa 0.62 4 Oct 04 – 24 Oct 04



11 Oct 04 - 4 Nov 04

Cathay Pacific 0.50 to TC1 and TC2; and 0.25 to TC3 16 Oct 04 - 15 Nov 04

Air New Zealand 0.50 to TC1 and TC2; and 0.25 to TC3 16 Oct 04 - 4 Nov 04

British Airways 0.60 1 Nov 04 - 15 Nov 04

November 2004

40. At a meeting of the Singapore BAR-CSC held on 20 October 2004 Singapore Airlines

Cargo advised each of the other carriers present, being Air New Zealand, British Airways,

Japan Airlines, Lufthansa, Air France, Cargolux, KLM, Korean Air; Malaysia Airlines,

China Airlines, Royal Brunei Airlines, SriLankan Airlines, Thai Airways and each of the

carriers to which the minutes were subsequently sent (being the members of the Singapore

BARCSC including each of the Respondents) that it proposed to increase its fuel

surcharge:

(a) to SGD0.60/kg on the supply of international airfreight services from Singapore to

TC1, TC2 and North Asia; and

(b) to SGD0.30/kg on the supply of international airfreight services from Singapore to

TC3 (excluding North Asia);

128

8196443_11

(c) the carriers discussed certain aspects of the proposed fuel surcharge increase and, in

particular, whether the fuel surcharge to North Asia should be increased; and

(d) following the feedback from other carriers, Singapore Airlines Cargo stated that it

would consider that feedback and announce its fuel surcharge on 21 October 2004.

DOCUMENTS

A. The minutes of the meeting of the Singapore BAR-CSC held on 20 October 2004, record that:

a. the Chairman of the Singapore BAR-CSC meeting, Clinton Tan, stated that Singapore Airlines Cargo would increase the fuel surcharge as alleged;

b. Singapore BAR-CSC members discussed whether the fuel surcharge to North Asia should be increased and that Singapore BARCSC members had the consensus that the demand and prices to North Asia may not be strong enough to absorb the higher fuel surcharge; and

c. the Chairman advised the members that Singapore Airlines Cargo would announce their charges the following day, being 21 October 2004.

B. The minutes of the Singapore BAR-CSC meeting held on 20 October 2004 were sent by email dated 27 October 2004 to representatives of carriers, including David Poon (Qantas), Ibrahim Altway (Lufthansa), Clinton Tan (Singapore Airlines Cargo), Winston Tan (Cathay Pacific), Ronnie Chew (Air New Zealand) and Trina Chiang (British Airways).

41. On 21 October 2004 Singapore Airlines Cargo determined that:

(a) it would not increase the fuel surcharge to North Asia; and

(b) the fuel surcharge increase would be effective from 5 November 2004;

and it advised various other carriers, including the Respondents, of these decisions.

DOCUMENTS

The decision is referred to in a postscript to the minutes of the 20 October 2004 Singapore BAR-CSC meeting. Singapore Airlines Cargo advised other carriers, including the Respondents, of these decisions, at least, by the dissemination of the minutes of the meeting of 20 October 2004 where these decisions were referred to as a post script.

42. On or about 28 October 2004 Liu Bo (Singapore Airlines Cargo) sent an email to the

members of the Singapore BAR-CSC including each of the Respondents which:

129

8196443_11

(a) circulated the results of a survey of fuel surcharge amounts to be charged by some

carriers and implementation dates; and

(b) asked the other members of the Singapore BAR-CSC, for their fuel surcharge

intentions, which would be collated and circulated to the members of the Singapore

BAR-CSC.

43. The Respondents announced fuel surcharges (SGD/kg):

Respondent Amount Date of Announcement (on or about)

Effective


0.40 for South West Pacific and DPS

Unknown 1 Nov 04

Lufthansa 0.73 12 Oct 04 25 Oct 04

Singapore Airlines Cargo 0.60 to TC1 and TC2;

0.50 to North Asia; and

0.30 to TC3 (excluding North Asia)

21 Oct 2004 5 Nov 2004

Cathay Pacific 0.60 to TC1 and TC2; and 0.30 to TC3 26 Oct 04 16 Nov 04

Air New Zealand 0.60 to TC1 and TC2; and 0.30 to TC3 Unknown 5 Nov 04

British Airways 0.60 to Australia

0.70 to North Bound Destinations

29 Oct 04 16 Nov 04

44. The Respondents imposed the following fuel surcharges:

130

8196443_11

Respondent Amount Period (from on or about to on or about)



1 Nov 04 – 15 Nov 04

0.70 for TC1, TC2 and North Asia


16 Nov 04 – 31 Dec 04



1 Jan 05 – 15 Jan 05



16 Jan 05 – 9 Apr 05



10 Apr 05 - 12 Jul 05

0.75 for TC1, TC2

0.35 for TC3

13 Jul 05 – 9 Sep 05

0.90 for TC1, TC2

0.45 for South West Pacific and all areas in Australia

0.35 for all areas in Asia

10 Sep 05 – 25 Oct 05

Lufthansa 0.73 25 Oct 04 – 2 Jan 05

0.66 3 Jan 05 – 20 Mar 05

0.75 21 Mar 05 - 3 Apr 05

0.86 4 Apr 05 – 10 July 05

0.92 11 Jul 05 – 4 Sep 05

1.02 5 Sep 05 – 16 Oct 05

1.11 17 Oct 05 - unknown


0.60 TC1 and TC2;

0.50 North Asia; and

0.30 TC3 (excluding North Asia).

5 Nov 04 to 2 Jan 05

0.60 TC1 and TC2;

0.45 North Asia; and


7 April 05 to 12 July 05

0.75 to TC1 and TC2;



13 Jul 05 - 5 Sep 05

0.90 to TC1 and TC2;


no change to TC3 (excluding North Asia)

6 Sep 05 - 21 Oct 05

Cathay Pacific 0.60 to TC1 and TC2; and 0.30 to TC3

0.50 for TC1 and TC2; and 0.25 for TC3





16 Nov 04 – 15 Jan 05

16 Jan 05 – 31 Mar 05

1 Apr 05 – 15 Jul 05

16 Jul 05 – 15 Sep 05

16 Sep 05 – 30 Oct 05

1 Nov 05 – 15 Dec 05

131

8196443_11

Air New Zealand 0.60 to TC1 and TC2; and 0.30 to TC3





5 Nov 04 - Jan 05

1 Jan 05 - 15 Apr 05

16 Apr 05 - 15 Jul 05

16 Jul 05 – 15 Sep 05

16 Sep 05 – unknown

British Airways 0.70 for long haul and 0.60 for short haul 16 Nov 04 – 31 Jan 04

0.60 northbound and 0.25 southbound 1 Feb 05 - 15 May 05

0.60 northbound and 0.30 southbound 16 May 05 – 13 Jul 05

0.75 for TC1 and TC2 and 0.35 TC3 14 Jul 05 – 7 Sep 05

0.90 for TC1 and TC2 and 0.45 TC3 8 Sep 05 – 13 Oct 05

1.02 for TC1 and TC2 and 0.45 TC3 14 Oct 05 – 31 Oct 05

1.13 for TC1 and TC2 and 0.60 TC3 1 Nov 05 – 31 Nov 05

132

8196443_11

SCHEDULE D – INDONESIA UNDERSTANDING

The Applicants say that both the existence of the Indonesia Understanding; and that the

Respondents gave effect to the Indonesia Understanding, are to be inferred from the conduct and

documents set out below.

October 2001

1. On or about 4 October 2001, each of Lufthansa, Singapore Airlines Cargo and Cathay


Airlines containing the following provisions or one or more of them:

(a) with effect from 16 October 2001 each of those carriers would impose a fuel

surcharge from Indonesia to all destinations (including within Australia) of

USD0.05/kg or, alternatively, no less than USD0.05/kg; and

(b) a working group of carriers comprising representatives of Singapore Airlines Cargo,

Garuda, EVA Air, Emirates, Lufthansa, Korean Air and KLM would be established

to determine minimum prices among carriers especially for the market ex Indonesia.

DOCUMENTS

The minutes of the ACRB – Indonesia meeting held on 4 October 2001 were circulated by email and/or fax to those carriers that attended and to members of the ACRB – Indonesia that did not attend.

October 2001 Indonesia Price Understanding

2. On or about 29 October 2001 each of Qantas, Lufthansa, Singapore Airlines Cargo and

Cathay Pacific made an arrangement or arrived at an understanding with a number of other

Airlines containing a provision that with effect from 1 December 2001, the carriers which

were party to the understanding would impose prices no lower than specified prices for the

supply of Airfreight Services from Jakarta to various destinations including but not limited

to the following:

(a) Sydney – USD1.00/kg for general freight; and

(b) Perth – USD0.80/kg for general freight.

133

8196443_11

DOCUMENTS

The minutes of the ACRB – Indonesia meeting held on 29 October 2001 were circulated by email and/or fax to those carriers that attended and to members of the ACRB – Indonesia that did not attend.

April 2002 Indonesia Understanding

3. On or about 9 April 2002 each of Lufthansa, Singapore Airlines Cargo and Cathay Pacific

made an arrangement or arrived at an understanding with a number of other Airlines

containing a provision that with effect from no later than 1 May 2002 each of those

carriers would impose or maintain a fuel surcharge from Indonesia to all destinations

(including Australia, but excluding Japan) of USD0.05/kg.

DOCUMENTS

The minutes of the ACRB – Indonesia meeting held on 9 April 2002 were circulated by email and/or fax to those carriers that attended and to members of the ACRB – Indonesia that did not attend.

June 2002 Indonesia Understanding

4. On or about 4 June 2002 each of Qantas, Lufthansa, Singapore Airlines Cargo and Cathay


Airlines (the “June 2002 Indonesia Understanding”), containing a provision that the fuel

surcharges then in place would be maintained except those on the Jakarta-Singapore

Route, in relation to which each carriers would be free to charge as it saw fit.

DOCUMENTS The minutes of the ACRB – Indonesia meeting held on 4 June 2002 were circulated by email and/or fax to those carriers that attended and to members of the ACRB – Indonesia that did not attend.

September 2002 Indonesia Understanding and January 2003 Indonesia Understanding

5. On or about 13 September 2002 each of Lufthansa, Singapore Airlines Cargo and Cathay


Airlines containing a provision that with effect from 1 October 2002 each of those carriers

would impose or maintain a fuel surcharge from Indonesia to the following destinations of

no less than the following amounts:


and TC2; and

134

8196443_11


(excluding Japan).

DOCUMENTS

The minutes of the ACRB – Indonesia meeting held on 13 September 2002 were circulated by email and/or fax to those carriers that attended and to members of the ACRB – Indonesia that did not attend.

6. On or about 29 January 2003 each of Lufthansa, Singapore Airlines Cargo and Cathay


Airlines containing a provision that the fuel surcharge then in place would be maintained.

DOCUMENTS

The minutes of the ACRB – Indonesia meeting held on 29 January 2003 were circulated by email and/or fax to those carriers that attended and to members of the ACRB – Indonesia that did not attend.

7. Respondents imposed or maintained fuel surcharges of no less than the following amounts

for the following periods (USD/kg):

Respondent Surcharge From on or about, to on or about

Lufthansa 0.10 23 Sep 02 – 5 May 03


0.05 to TC3 (excluding Japan)

1 Oct 02 - 11 May 03

Singapore 0.10 to TC1 and TC2; and


1 Oct 02 - 11 May 03

May 2003 Indonesia Understanding

8. On or about 9 May 2003 each of Lufthansa, Singapore Airlines Cargo, Cathay Pacific and

British Airways made an arrangement or arrived at an understanding with a number of

other Airlines containing a provision that with effect from no later than 12 May 2003 each

of those carriers would impose or maintain a fuel surcharge from Indonesia to the

following destinations of no less than the following amounts:


and TC2; and


(excluding Japan).

135

8196443_11

DOCUMENTS

A. In an email dated 24 April 2003 addressed to the various members of the ACRB – Indonesia, Lellyasih Setyawati (Malaysia Airlines) advised that Garuda had stated that it intended to waive the fuel surcharge with effect from 24 April 2003. This resulted in complaints from the other carriers (including Singapore Airlines Cargo, and an email by Mohamad Ofyan (Cathay Pacific)) that the carriers had not received any notification about the waiver. This also resulted in a request for a meeting of ACRB – Indonesia to discuss the issue.

B. Garuda agreed and that meeting of ACRB – Indonesia was held on 9 May 2003 at which time Garuda agreed to reimpose the fuel surcharge at the urging of the other carriers at the meeting including Lufthansa, Singapore Airlines Cargo, Cathay Pacific, British Airways and others including Emirates, Malaysia Airlines, SriLankan Airlines, Thai Airways, KLM, Kuwait Airways, Air India, Cargolux, and Gulf Air.

C. The minutes of the ACRB – Indonesia meeting held on 9 May 2003 were circulated by email and/or fax to those carriers that attended and to members of the ACRB – Indonesia that did not attend.




Lufthansa 0.10

0.25

6 May 03 – 6 June 04

7 Jun 04 – 15 Oct 04

Singapore 0.10 to TC1 and TC2; and


12 May 03 - 15 Jun 04

0.15 to TC1 and TC2; and


16 Jun 04 – 15 Oct 04



12 May 03 to 15 May 04

0.20 to TC1 and TC2; and


16 May 04 – 15 Oct 04

British Airways 0.10

0.15

0.20

8 May 03 – 17 Dec 03

18 Dec 03 – 12 May 04

13 May 04 – 12 Oct 04

September 2004 Indonesia Understanding

10. On or about 29 September 2004, each of Qantas, Lufthansa, Singapore Airlines Cargo and

British Airways made an arrangement or arrived at an understanding with a number of

other Airlines containing a provision that with effect from 16 October 2004 each of those

carriers would impose or maintain a fuel surcharge from Indonesia to the following

destinations of no less than the following amount:

136

8196443_11


and TC2; and


(excluding Japan).

DOCUMENTS

The minutes of the ACRB – Indonesia meeting held on 29 September 2004 were circulated by email to those carriers that attended and to members of the ACRB – Indonesia that did not attend.


for the following periods:


Qantas 0.25 16 Oct 04 – 15 Nov 04

0.30 to TC1 and TC2 and 0.25 to TC3 excluding Japan and China 16 Nov 04 – 31 Jan 05

0.25 to TC1 and TC2 and 0.20 to TC3 excluding Japan and China 1 Feb 05 – 15 Apr 05

0.30 to TC1 and TC2 and 0.20 to TC3 excluding Japan and China 16 Apr 05 - 20 Jul 05

Lufthansa 0.30 to TC1 and TC2 and 0.25 to TC3 excluding Japan 16 Oct 04 – 3 Apr 05

Singapore 0.20 to TC1 and TC2 and 0.05 to TC3 excluding Japan 16 Oct 04 - 30 Apr 05

Cathay Pacific 0.20 to TC1 and TC2 and 0.05 toTC3 excluding Japan 16 Oct 04 – 30 Apr 05

British Airways 0.30 to TC1 and TC2 and 0.15 to TC3 excluding Japan 13 Oct 04 – 15 July 05

April 2005 Indonesia Understanding

12. On or about 4 April 2005 each of Lufthansa, Singapore Airlines Cargo and Cathay Pacific

made an arrangement or arrived at an understanding with a number of other Airlines

containing a provision that with effect from no later than 1 May 2005 each of those

carriers would impose or maintain a fuel surcharge from Indonesia to the following

destinations of no less than the following amounts:


and TC2; and


(excluding Japan).


for the following periods:

137

8196443_11


Singapore 0.30 to TC1 and TC2 and 0.05 to TC3 (excluding Japan) 1 May 05 to 15 Jul 05

Lufthansa 0.40 4 Apr 05 – 10 Jul 05

Cathay Pacific 0.30 to TC1 and TC2 and 0.05 to TC3 (excluding Japan) 1 May 05 - 15 Jul 05

July 2005 Indonesia Understanding

14. On or about 15 July 2005 each of Qantas, Lufthansa Singapore Airlines Cargo, Cathay

Pacific and British Airways made an arrangement or arrived at an understanding with a

number of other Airlines containing a provision that with effect from no later than 1

August 2005 each of those carriers would impose or maintain a fuel surcharge from

Indonesia to the following destinations of no less than the following amounts:


and TC2; and


(excluding Singapore and Kuala Lumpur).

DOCUMENTS

The minutes of the ACRB – Indonesia meeting held on 15 July 2005 were circulated by email to those carriers that attended and to members of the ACRB – Indonesia that did not attend.




Qantas 0.40 to TC1 and TC2 and 0.20 to TC3 excluding Japan and China

20 Jul 05 – 3 Sep 05

Lufthansa 0.45 11 Jul 05 – 4 Sep 05


0.40 to TC1 and TC2 and 0.05 to TC3 excluding Japan and Singapore

16 Jul 05 - 15 Sep 2005

Cathay Pacific 0.40 to TC1 and TC2 and 0.05 to TC3 excluding Japan and Singapore

16 Jul 05 - 7 Sep 2005

British Airways 0.40 to TC1 and TC2 16 Jul 05 - 7 Sep 05

September 2005 Indonesia Understanding

16. Between 29 August 2005 and approximately 22 September 2005 each of Qantas,

Lufthansa, Singapore Airlines Cargo, Cathay Pacific and British Airways made an

arrangement or arrived at an understanding with a number of other Airlines containing a

138

8196443_11

provision that with effect from 1 October 2005 each of those carriers would impose or

maintain a fuel surcharge from Indonesia to the following destinations of no less than the

following amounts:


and TC2; and


DOCUMENTS

A. Emails between Madi Dewanto (Cathay Pacific), Jefry Chandra (Singapore Airlines Cargo) and representatives of China Airlines and EVA Air between 29 August 2005 and 1 September 2005 and at the meeting of ACRB – Indonesia held on 15 September 2005.

B. The resolution of the ACRB – Indonesia meeting held on 15 September 2005 to increase the fuel surcharge as noted was sent by email to those carriers that attended and to members of the ACRB – Indonesia that did not attend on or shortly after 22 September 2005.




Qantas 0.45 for TC1 and TC2 and 0.20 for TC3 except Japan and Singapore 4 Sep 05 – 15 Nov 05

0.50 for TC1 and TC2 and 0.20 for TC3 except Japan and Singapore 16 Nov 05 – 13 Nov 05

0.45 for TC1 and TC2 1 Dec 05 – 31 May 06

Lufthansa 0.45 for TC1 and TC2 and 0.45 for TC3 except Japan and Singapore 5 Sep 05 – 4 Dec 05


0.50 to TC1 and TC2 and 0.05 to TC3 except Japan and Singapore 16 Sep 05 – unknown

Cathay Pacific 0.50 to TC1 and TC2 and 0.05 to TC3 except Japan and Singapore 8 Sep 05 - 31 Oct 05

British Airways 0.50 to TC1 and TC2 8 Sep 05 – unknown

139

8196443_11

SCHEDULE E – HONG KONG 2002 UNDERSTANDING

The Applicants say that both the existence of the Hong Kong 2002 Understanding; and that the

Respondents gave effect to the Hong Kong 2002 Understanding, are to be inferred from the

conduct and documents set out below.

1. In the period from on or about 1 August 2002 until on or about 12 September 2002, each

of the Respondents imposed a fuel surcharge of HKD0.40/kg (and HKD0.20/kg for Asia

except South and South West Pacific) on the supply of international airfreight services

from Hong Kong.

2. By 5 September 2002, the Lufthansa Fuel Index had exceeded index level 135 for two

consecutive weeks, and on or about 5 September 2002 the Chairman of the HK BAR-CSC

wrote to the HK CAD, copied to all HK BAR-CSC members, notifying it that the

Lufthansa Fuel Index had exceeded 135 for two consecutive weeks, and that HK BARCSC

members would levy a fuel surcharge of HKD0.80/kg (HKD0.40/kg for Asia, except South

and South West Pacific) from 13 September 2002.

DOCUMENTS

Letter from the HK BAR-CSC to the HK CAD of 5 September 2002.

3. In the period from on or about 13 September 2002 until on or about 20 February 2003,

each of the Respondents imposed a fuel surcharge of HKD0.80/kg (and HKD0.40/kg for

Asia except South and South West Pacific) on the supply of international airfreight

services from Hong Kong.

4. By 12 February 2003, the Lufthansa Fuel Index had exceeded index level 165 for two

consecutive weeks, and on or about 12 February 2003 the Chairman of the HK BARCSC




and South West Pacific) from 21 February 2003.

DOCUMENTS

Letter from the HK BAR-CSC to the HK CAD of 12 February 2003.

5. In the period from on or about 21 February 2003 until on or about 26 March 2003, each of

the Respondents imposed a fuel surcharge of HKD1.20/kg (and HKD0.60/kg for Asia

140

8196443_11


from Hong Kong.

6. By 13 March 2003, the Lufthansa Fuel Index had exceeded index level 190 for two

consecutive weeks, and on or about 13 March 2003 there was a meeting of the HK BAR-

CSC at which it was agreed that the increased surcharge in accordance with the Hong

Kong Lufthansa Methodology would take effect from 27 March 2003, and the Chairman

of the HK BAR-CSC wrote to the HK CAD, copied to all HK BAR-CSC members,

notifying it that the Lufthansa Fuel Index had exceeded 190 for two consecutive weeks,

and that HK BAR-CSC members would levy a fuel surcharge of HKD1.60/kg

(HKD0.80/kg for Asia, except South and South West Pacific) from 27 March 2003.

DOCUMENTS

A. Minutes of the meeting of the HK BAR-CSC held on or about 13 March 2003.

B. Letter from the HK BAR-CSC to the HK CAD of 13 March 2003.

7. In the period from on or about 27 March 2003 until on or about 21 April 2003, each of the

Respondents imposed a fuel surcharge of HKD1.60/kg (and HKD0.80/kg for Asia except

South and South West Pacific) on the supply of international airfreight services from Hong

Kong.

8. By 8 April 2003, the Lufthansa Fuel Index had declined to below index level 170 for two

consecutive weeks, and on or about 8 April 2003 the Chairman of the HK BAR-CSC


Lufthansa Fuel Index had declined below 170 for two consecutive weeks, and that HK

BAR-CSC members would levy a reduced fuel surcharge of HKD1.20/kg (HKD0.60/kg

for Asia, except South and South West Pacific) from 22 April 2003.

DOCUMENTS

Letter from the HK BAR-CSC to the HK CAD of 8 April 2003

9. In the period from on or about 22 April 2003 until on or about 30 April 2003, each of the



Kong.

141

8196443_11

10. By 24 April 2003, the Lufthansa Fuel Index had declined to below index level 145 for two

consecutive weeks, and on or about 24 April 2003 the Chairman of the HK BARCSC




for Asia, except South and South West Pacific) from 1 May 2003.

DOCUMENTS

Letter from the HK BAR-CSC to the HK CAD of 24 April 2003.

11. In the period from on or about 1 May 2003 until on or about 18 December 2003, each of



from Hong Kong.

First Hong Kong Surcharge Extension Understanding

12. On or about 12 June 2003 each of the Respondents made an arrangement or arrived at an

understanding with other Airlines containing provisions that the HK BAR-CSC should

apply to the HK CAD to extend the approval for the Hong Kong Lufthansa Methodology,

and those carriers would continue to apply surcharges in accordance with that

methodology (the “First Hong Kong Surcharge Extension Understanding”).

DOCUMENTS

Minutes of the meeting of the HK BAR-CSC held on 12 June 2003.

13. On or about 20 June 2003, the HK BAR-CSC applied for an extension to the approval of

the Hong Kong Lufthansa Methodology.

DOCUMENTS

Letter from the HK BAR-CSC to the HK CAD dated 20 June 2003.

14. On or about 11 July 2003, the HK CAD approved an extension to the Hong Kong

Lufthansa Methodology until 18 January 2004.

DOCUMENTS

Letter from the HK CAD to the HK BAR-CSC dated 11 July 2003.

15. On or about 10 November 2003 a meeting of the HK BAR-CSC decided to appoint a

Surcharge Working Group to deal with surcharge issues.

142

8196443_11

DOCUMENTS

Minutes from that meeting were sent to Respondents including Johnny Ho (Qantas), Gabriella Ahrens and Cindy Lu (Lufthansa), Charles Wong and Clinton Tan (Singapore Airlines Cargo), Martin Ngai (Air New Zealand) and Christopher Chan, Eda Chen, Frankie Chan and Shelby Fung (British Airways).

16. By 5 December 2003, the Lufthansa Fuel Index had exceeded index level 165 for two

consecutive weeks, and on or about 5 December 2003 Tom Wong, Chairman of the HK

BAR-CSC and Cathay Pacific’s Cargo Sales Manager Hong Kong wrote to the HK CAD,

copied to all HK BAR-CSC members, notifying it that the Lufthansa Fuel Index had

exceeded 165 for two consecutive weeks, and that HK BARCSC members would levy a

fuel surcharge of HKD1.20/kg (HKD0.60/kg for Asia, except South and South West

Pacific) from 19 December 2003.

DOCUMENTS

Letter from the HK BAR-CSC to the HK CAD of 5 December 2003, copied to each of the Respondents including Minutes from that meeting were sent to Respondents including Johnny Ho (Qantas), Gabriella Ahrens and Cindy Lu (Lufthansa), Charles Wong and Clinton Tan (Singapore Airlines Cargo), Martin Ngai (Air New Zealand) and Christopher Chan, Eda Chen, Frankie Chan and Shelby Fung (British Airways).

17. In the period from on or about 19 December 2003 until on or about 10 May 2004, each of



from Hong Kong.

Second Hong Kong Surcharge Extension Understanding

18. On or about 16 December 2003, each of the Respondents made an arrangement or arrived

at an understanding with other Airlines containing provisions that the HK BAR-CSC

should apply to the HK CAD to extend the approval for the Hong Kong Lufthansa

Methodology, and those carriers would continue to apply surcharges in accordance with

that methodology (the “Second Hong Kong Surcharge Extension Understanding”).

DOCUMENTS

A. Meeting of the Surcharge Working Group (which included a representative from Cathay Pacific and Singapore Airlines Cargo) held on or about 16 December 2003, at which it was agreed that the HK BAR-CSC should apply to the HK CAD to extend the approval for the Hong Kong Lufthansa

143

8196443_11

Methodology, and that members should continue to apply the surcharge in accordance with that methodology.

A. A summary of the meeting was sent by Tom Wong (Cathay Pacific) to Johnny Ho (Qantas), Gabriella Ahrens and Cindy Lu (Lufthansa), Charles Wong and Clinton Tan (Singapore Airlines Cargo), Martin Ngai (Air New Zealand) and Christopher Chan, Eda Chen, Frankie Chan and Shelby Fung (British Airways).

19. On or about 18 December 2003, the HK BAR-CSC applied for an extension to the

approval for the Hong Kong Lufthansa Methodology and advised members it had done so.

DOCUMENTS

Email from HK BAR-CSC to members dated 19 December 2003.

20. On or about 17 January 2004, the HK CAD approved an extension to the Hong Kong

Lufthansa Methodology from 19 January 2004 until 18 July 2004.

DOCUMENTS

Letter from the HK CAD to the HK BAR-CSC dated 17 January 2004.

21. By 27 April 2004, the Lufthansa Fuel Index had exceeded index level 190 for two

consecutive weeks, and on or about 27 April 2004 the Chairman of the HK BAR-CSC


Lufthansa Fuel Index had exceeded 190 for two consecutive weeks, and that HK BAR-

CSC members would levy a fuel surcharge of HKD1.60/kg (HKD0.80/kg for Asia, except

South and South West Pacific) from 11 May 2004.

DOCUMENTS

A. Letter from the HK BAR-CSC to the HK CAD of 27 April 2004.

B. Email from HK BAR-CSC to members of 27 April 2004 informing them of the change to the fuel surcharge.

22. In the period from on or about 11 May 2004 until on or about 8 August 2004, each of the



Kong.

Third Hong Kong Surcharge Extension Understanding

23. On or about 17 May 2004 each of the Respondents made an arrangement or arrived at an

understanding with other Airlines containing provisions that:

144

8196443_11

(a) the HK BAR-CSC should apply to the HK CAD to extend the approval for the Hong

Kong Lufthansa Methodology; that the HK BAR-CSC should also apply to the HK

CAD for approval for an additional two levels (levels 5 and 6) in accordance with

the Lufthansa Methodology; and

(b) those carriers would continue to apply surcharges in accordance with that

methodology;

(the “Third Hong Kong Surcharge Extension Understanding”).

DOCUMENTS

A. Meeting of the HK BAR-CSC ExCom (which included representatives from Cathay Pacific and a representative from Singapore Airlines Cargo) held on or about 17 May 2004, at which it was agreed that the HK BAR-CSC should apply to the HK CAD to extend the approval for the Hong Kong Lufthansa Methodology, that the HK BAR-CSC should also apply to the HK CAD for approval for an additional two levels (levels 5 and 6) in accordance with the Lufthansa Methodology, and that members should continue to apply the surcharge in accordance with that methodology.

B. Minutes of the meeting were provided to each of the Respondents and specifically Johnny Ho (Qantas), Cindy Lu (Lufthansa), Charles Wong (Singapore Airlines Cargo), Martin Ngai (Air New Zealand) and Christopher Chan, Michelle Chu, Frankie Chan and Shelby Fung (British Airways).

24. On or about 20 May 2004, the HK BAR-CSC applied to the HK CAD for approval for an

additional two levels (levels 5 and 6) to be added to the 2002 Hong Kong Lufthansa

Methodology in accordance with the Lufthansa Methodology.

DOCUMENTS

A. Letter from the HK BAR-CSC to the HK CAD of 20 May 2004.

B. Email from HK BAR-CSC to members of 20 May 2004.

25. On or about 16 June 2004, the HK BAR-CSC applied to the HK CAD for an extension of

the approval for the Hong Kong Lufthansa Methodology.

DOCUMENTS

A. Letter from the HK BAR-CSC to the HK CAD of 16 June 2004.

B. Email from HK BAR-CSC to members of 18 June 2004.

145

8196443_11

26. On or about 30 June 2004, the HK CAD approved the addition of levels 5 and 6 to the

Hong Kong Lufthansa Methodology. This added the following additional levels:











DOCUMENTS

Letter from the HK CAD to the HK BAR-CSC of 30 June 2004.

27. On or about 2 July 2004, the HK CAD approved an extension to the Hong Kong Lufthansa

Methodology from 19 July 2004 until 18 July 2005.

DOCUMENTS

Letter from the HK CAD to the HK BAR-CSC of 2 July 2004.

28. By 26 July 2004, the Lufthansa Fuel Index had exceeded index level 215 for two

consecutive weeks, and on or about 26 July 2004 the Chairman of the HK BAR-CSC




South and South West Pacific) from 9 August 2004.

DOCUMENTS

A. Letter from the HK BAR-CSC to the HK CAD of 26 July 2004.

B. Email from HK BAR-CSC to members of 26 July 2004.

29. In the period from on or about 9 August 2004 until on or about 15 September 2004, each



from Hong Kong.


consecutive weeks, and on or about 2 September 2004 the Chairman of the HK BARCSC


146

8196443_11



and South West Pacific) from 16 September 2004.

DOCUMENTS

A. Letter from the HK BAR-CSC to the HK CAD of 2 September 2004.

B. Email from HK BAR-CSC to members of 2 September 2004.

31. In the period from on or about 16 September 2004 until on or about 5 November 2004 (or

7 November 2004 in the case of Singapore Airlines Cargo), each of: the Respondents

imposed a fuel surcharge of HKD2.40/kg (and HKD1.20/kg for Asia except South and

South West Pacific) on the supply of international airfreight services from Hong Kong.

Fourth Hong Kong Surcharge Extension Understanding

32. On or about 6 October 2004, each of the Respondents made an arrangement or arrived at

an understanding with other Airlines containing provisions that the HK BAR-CSC should

apply to the HK CAD for approval for an additional two levels (levels 7 and 8) in

accordance with the Lufthansa Methodology, and those carriers would continue to apply

surcharges in accordance with that methodology (the “Fourth Hong Kong Surcharge

Extension Understanding”).

DOCUMENTS

Circular email from Gary Chan (Cathay Pacific) to HK BAR-CSC Ex Com members of 6 October 2004.

33. On or about 7 October 2004, the HK BAR-CSC applied to the HK CAD for approval for

an additional two levels (levels 7 and 8) to be added to the Hong Kong Lufthansa


DOCUMENTS

Letter from the HK BAR-CSC to the HK CAD of 7 October 2004.

34. On or about 21 October 2004, the HK CAD approved the addition of levels 7 and 8 to the

Hong Kong Lufthansa Methodology. This added the following additional levels:

147

8196443_11




HKD2.80/kg (HKD1.40/kg for Asia, except South West Pacific)


HKD2.80/kg





DOCUMENTS

Letter from the HK CAD to the HK BAR-CSC of 21 October 2004, giving approval with effect from 22 October 2004.

35. By 21 October 2004, the Lufthansa Fuel Index had exceeded index level 265 for two

consecutive weeks, and on or about 21 October 2004 the Chairman of the HK BARCSC




and South West Pacific) from 6 November 2004.

DOCUMENTS


36. In the period from on or about 6 November 2004 (or in the case of Singapore Airlines

Cargo 8 November 2004) until on or about 15 November 2004, each of the Respondents

imposed a fuel surcharge of HKD2.80/kg (and HKD1.40/kg for Asia except South and

South West Pacific) on the supply of international airfreight services from Hong Kong.

37. By 2 November 2004, the Lufthansa Fuel Index had exceeded index level 290 for two

consecutive weeks, and on or about 2 November 2004 the Chairman of the HK BARCSC




South and South West Pacific) from 16 November 2004.

DOCUMENTS

A. Letter from the HK BAR-CSC to the HK CAD of 2 November 2004.

B. Email from the HK BAR-CSC to members of 2 November 2004.

148

8196443_11

38. In the period from on or about 16 November 2004 until on or about 6 December 2004,




39. By 23 November 2004, the Lufthansa Fuel Index had declined to below index level 270

for two consecutive weeks, and on or about 23 November 2004 the Chairman of the HK

BAR-CSC wrote to the HK CAD, copied to all HK BAR-CSC members, notifying it that

the Lufthansa Fuel Index had declined below 270 for two consecutive weeks, and that HK


for Asia, except South and South West Pacific) from 7 December 2004.

DOCUMENTS


B. Email from HK BAR-CSC to members of 23 November 2004.

40. In the period from on or about 7 December 2004 until on or about 3 January 2005, each of



from Hong Kong.

41. By 21 December 2004, the Lufthansa Fuel Index had declined to below index level 245 for

two consecutive weeks, and on or about 21 December 2004 the Chairman of the HK BAR-

CSC wrote to the HK CAD, copied to all HK BAR-CSC members, notifying it that the



for Asia, except South and South West Pacific) from 4 January 2005.

DOCUMENTS

A. Letter from the HK BAR-CSC to the HK CAD of 21 December 2004.

B. Email from the HK BAR-CSC to members of 22 December 2004.

42. In the period from on or about 4 January 2005 until on or about 21 March 2005, each of



from Hong Kong.

149

8196443_11


consecutive weeks, and on or about 8 March 2005 the Chairman of the HK BAR-CSC




South and South West Pacific) from 22 March 2005.

DOCUMENTS

A. Letter from the HK BAR-CSC to the HK CAD of 8 March 2005.

B. Email from HK BAR-CSC to members of 8 March 2005.

44. In the period from on or about 22 March 2005 until on or about 4 April 2005, each of the



Kong.


consecutive weeks, and on or about 22 March 2005 the Chairman of the HK BAR-CSC




South and South West Pacific) from 5 April 2005.

DOCUMENTS

A. Letter from the HK BAR-CSC to the HK CAD of 22 March 2005.

B. Email from HK BAR-CSC to members of 22 March 2005.

46. In the period from on or about 5 April 2005 until on or about 11 July 2005, each of: each



from Hong Kong.

Fifth Hong Kong Surcharge Extension Understanding

47. In the period from late March to early May 2005, each of the Respondents made an

arrangement or arrived at an understanding with other Airlines containing provisions that:

150

8196443_11

(a) the HK BAR-CSC should apply to the HK CAD to extend the approval for the Hong

Kong Lufthansa Methodology;

(b) that the HK BAR-CSC should also apply to the HK CAD for approval for an

additional two levels (levels 9 and 10) in accordance with the Lufthansa

Methodology; and

(c) those carriers would continue to apply surcharges in accordance with that

methodology

(the “Fifth Hong Kong Surcharge Extension Understanding”).

DOCUMENTS

A. Communications between the members of the HK BAR-CSC Ex Com in the period from late March to early May 2005 including:

B. Discussions between HK BAR-CSC Ex Com members on or before 7 April 2005; and

C. Email from Gary Chan (Cathay Pacific) to HK BAR-CSC Ex Com members dated 9 May 2005.

48. On or about 7 April 2005, the HK BAR-CSC applied to the HK CAD for approval for an

additional two levels (levels 9 and 10) to be added to the Hong Kong Lufthansa


DOCUMENTS

Letter from the HK BAR-CSC to the HK CAD of 7 April 2005.

A. On or about 19 April 2005, the HK CAD approved the addition of levels 9

and 10 to the Hong Kong Lufthansa Methodology. This added the following

additional levels (HKD/kg):

151

8196443_11




3.60 (1.80 for Asia, except South and South West Pacific)







DOCUMENTS

Letter from the HK CAD to the HK BAR-CSC of 19 April 2005.

49. On or about 12 May 2005, the HK BAR-CSC applied to the HK CAD for an extension of

the approval for the Hong Kong Lufthansa Methodology.

DOCUMENTS

Letter from the HK BAR-CSC to the HK CAD of 12 May 2005.

50. On or about 1 June 2005, the HK CAD approved an extension to the Hong Kong

Lufthansa Methodology from 19 July 2005 until 18 July 2006.

DOCUMENTS


51. By 28 June 2005, the Lufthansa Fuel Index had exceeded index level 315 for two

consecutive weeks, and on or about 28 June 2005 the Chairman of the HK BAR-CSC




South and South West Pacific) from 12 July 2005.

DOCUMENTS


B. Email from HK BAR-CSC to members of 28 June 2005.

52. In the period from on or about 12 July 2005 until on or about 5 September 2005, each of



from Hong Kong.

152

8196443_11

53. By 23 August 2005, the Lufthansa Fuel Index had exceeded index level 340 for two

consecutive weeks, and on or about 23 August 2005 Christine Liu, the Chairperson of the

HK BAR-CSC and Cathay Pacific’s Manager Cargo Sales Hong Kong wrote to the HK

CAD, copied to all HK BAR-CSC members, notifying it that the Lufthansa Fuel Index had

exceeded 340 for two consecutive weeks, and that HK BARCSC members would levy a

fuel surcharge of HKD4.00/kg (HKD2.00/kg for Asia, except South and South West

Pacific) from 6 September 2005.

DOCUMENTS

A. Letter from the HK BAR-CSC to the HK CAD of 23 August 2005.

B. Email from HK BAR-CSC to members of 23 August 2005.

54. In the period from on or about 6 September 2005 until on or about 26 September 2005,




Sixth Hong Kong Surcharge Extension Understanding

55. On or about 23 August 2005, each of the Respondents made an arrangement or arrived at

an understanding with other Airlines containing provisions that the HK BAR-CSC should



surcharges in accordance with that methodology (the “Sixth Hong Kong Surcharge


DOCUMENTS

Meeting of the HK BAR-CSC ExCom (which included representatives from Cathay Pacific and a representative from Singapore Airlines Cargo) held on or about 23 August 2005, at which it was agreed that the HK BAR-CSC should apply to the HK CAD for approval for an additional two levels (levels 11 and 12) in accordance with the Lufthansa Methodology, and that members should continue to apply the surcharge in accordance with that methodology.

56. On or about 29 August 2005, the HK BAR-CSC applied to the HK CAD for approval for



153

8196443_11

DOCUMENTS

Letter from the HK BAR-CSC to the HK CAD of 29 August 2005.

57. On or about 8 September 2005, the HK CAD approved the addition of levels 11 and 12 to

the Hong Kong Lufthansa Methodology. This added the following additional levels

(HKD/kg):











DOCUMENTS

Letter from the HK CAD to the HK BAR-CSC of 8 September 2005 giving approval with effect from 9 September 2005.


consecutive weeks, and on or about 13 September 2005 the Secretary of the HK BARCSC,

Leslie Lu (Cathay Pacific) on behalf of the Chairperson, wrote to the HK CAD, copied to

all HK BAR-CSC members, notifying it that the Lufthansa Fuel Index had exceeded 365

for two consecutive weeks, and that HK BAR-CSC members would levy a fuel surcharge

of HKD4.40/kg (HKD2.20/kg for Asia, except South and South West Pacific) from 27

September 2005.

DOCUMENTS


B. Email from the HK BAR-CSC to members of 13 September 2005.

59. In the period from on or about 27 September 2005 until on or about 27 October 2005, each



from Hong Kong.

60. By 14 October 2005, the Lufthansa Fuel Index had exceeded index level 390 for two

consecutive weeks, and on or about 14 October 2005 the Chairperson of the HK BARCSC


154

8196443_11

Lufthansa Fuel Index had exceeded 390 for two consecutive weeks, and that HK

BARCCSC members would levy a fuel surcharge of HKD4.80/kg (HKD2.40/kg for Asia,

except South and South West Pacific) from 28 October 2005.

DOCUMENTS

A. Letter from the HK BAR-CSC to the HK CAD of 14 October 2005.

B. Email from the HK BAR-CSC to members of 14 October 2005.

61. In the period from on or about 28 October 2005 until on or about 21 November 2005, each



from Hong Kong.

Seventh Hong Kong Surcharge Extension Understanding

62. In or about October 2005, each of the Respondents made an arrangement or arrived at an




surcharges in accordance with that methodology (the “Seventh Hong Kong Surcharge


DOCUMENTS

Communications between the members of the HK BAR-CSC Ex Com in the first half of October 2005.

63. On or about 17 October 2005, the HK BAR-CSC applied to the HK CAD for approval for



DOCUMENTS


64. On or about 1 November 2005, the HK CAD approved the addition of levels 13 and 14 to

the Hong Kong Lufthansa Methodology. This added the following additional levels:

155

8196443_11











DOCUMENTS

Letter from the HK CAD to the HK BAR-CSC of 1 November 2005 giving approval with effect from 1 November 2005.

65. By 8 November 2005, the Lufthansa Fuel Index had declined to below index level 370 for

two consecutive weeks, and on or about 8 November 2005 the Chairperson of the HK




for Asia, except South and South West Pacific) from 22 November 2005.

DOCUMENTS


B. Email from HK BAR-CSC to members of 8 November 2005.

66. In the period from on or about 22 November 2005 until on or about 28 November 2005,





for two consecutive weeks, and on or about 15 November 2005 Nelson Chin (Cathay

Pacific), on behalf of the Chairperson of the HK BAR-CSC, wrote to the HK CAD, copied

to all HK BAR-CSC members, notifying it that the Lufthansa Fuel Index had declined

below 345 for two consecutive weeks, and that HK BAR-CSC members would levy a

reduced fuel surcharge of HKD4.00/kg (HKD2.00/kg for Asia, except South and South

West Pacific) from 29 November 2005.

DOCUMENTS


156

8196443_11

B. Email from the HK BAR-CSC to members of 15 November 2005.

68. In the period from on or about 29 November 2005 until on or about 5 December 2005,





for two consecutive weeks, and on or about 22 November 2005 the Chairperson of the HK




for Asia, except South and South West Pacific) from 6 December 2005.

DOCUMENTS

Letter from the HK BAR-CSC to the HK CAD of 22 November 2005.

70. In the period from on or about 6 December 2005 until on or about 20 February 2006, each



from Hong Kong.

71. By 7 February 2006, the Lufthansa Fuel Index had exceeded index level 340 for two

consecutive weeks, and on or about 7 February 2006 Nelson Chin, on behalf of the

Chairperson of the HK BAR-CSC, wrote to the HK CAD, copied to all HK BAR-CSC

members, notifying it that the Lufthansa Fuel Index had exceeded 340 for two consecutive

weeks, and that HK BAR-CSC members would levy a fuel surcharge of HKD4.00/kg

(HKD2.00/kg for Asia, except South and South West Pacific) from 21 February 2006.

DOCUMENTS

A. Letter from the HK BAR-CSC to the HK CAD of 7 February 2006.

B. Email from HK BAR-CSC to members of 7 February 2006.

72. In the period from on or about 21 February 2006 until on or about 8 May 2006, each of the



Kong.

157

8196443_11

73. By 25 April 2006, the Lufthansa Fuel Index had exceeded index level 365 for two

consecutive weeks, and on or about 25 April 2006 the Chairperson of the HK BARCSC




and South West Pacific) from 9 May 2006.

DOCUMENTS

A. Letter from the HK BAR-CSC to the HK CAD of 25 April 2006.

B. Email from the HK BAR-CSC to members of 25 April 2006.

74. In the period from on or about 9 May 2006 until on or about 15 May 2006, each of the



Kong.

75. By 2 May 2006, the Lufthansa Fuel Index had exceeded index level 390 for two

consecutive weeks, and on or about 2 May 2006 the Chairperson of the HK BAR-CSC




South and South West Pacific) from 16 May 2006.

DOCUMENTS

A. Letter from the HK BAR-CSC to the HK CAD of 2 May 2006.

B. Email from HK BAR-CSC to members of 2 May 2006.

76. In the period from on or about 16 May 2006 until on or about 9 October 2006, each of the



Kong.

Eighth Hong Kong Surcharge Extension Understanding

77. On or about 16 May 2006, each of the Respondents made an arrangement or arrived at an


apply to the HK CAD to extend the approval for the Hong Kong Lufthansa Methodology,

158

8196443_11

and those carriers would continue to apply surcharges in accordance with that

methodology (the “Eighth Hong Kong Surcharge Extension Understanding”).

DOCUMENTS

Meeting of the HK BAR-CSC ExCom (which included representatives from Cathay Pacific and a representative from Singapore Airlines Cargo) held on or about 16 May 2006, at which it was agreed that the HK BAR-CSC should apply to the HK CAD to extend the approval for the Hong Kong Lufthansa Methodology, and that member should continue to apply the surcharge in accordance with that methodology.

78. On or about 5 June 2006, the HK BAR-CSC applied to extend the approval period for the

Hong Kong Lufthansa Methodology.

DOCUMENTS


B. Email from the HK BAR-CSC to members of 5 June 2006.

79. On or about 21 June 2006, the HK CAD approved an extension to the Hong Kong

Lufthansa Methodology from 19 July 2006 until 18 July 2007.

DOCUMENTS


80. By 26 September 2006, the Lufthansa Fuel Index had declined to below index level 370

for two consecutive weeks, and on or about 26 September 2006 the Chairperson of the HK




for Asia, except South and South West Pacific) from 10 October 2006.

DOCUMENTS


B. Email from the HK BAR-CSC to members of 26 September 2006.

81. In the period from on or about 10 October 2006 until on or about 17 October 2006, each of



from Hong Kong.

159

8196443_11

SCHEDULE F – JAPAN UNDERSTANDING

The Applicants say that both the existence of the Japan Understanding; and that the Respondents

party to the Japan Understanding gave effect to the Japan Understanding, are to be inferred from

the conduct and documents set out below.

October 2002 Japan Understanding

1. On a date unknown to the Applicants but in or around September 2002, a representative of

Japan Airlines asked Mitsuharu Yokoyama, the Cargo Manager for Japan for Cathay

Pacific, to impose a fuel surcharge on Airfreight Services from Japan in the same amount

as Japan Airlines was then charging and Mitsuharu Yokoyama agreed to do so.

2. Further, in or about September and October 2002 a representative of Cathay Pacific

(whose identity is not known to the Applicants) communicated with other members of the

ICAJ, including Air New Zealand and Korean Air, concerning the implementation of a

fuel surcharge of JPY12/kg from 16 October 2002 on Airfreight Services from Japan and

they agreed to do so save that Korean Air stated that it would impose the fuel surcharge

from 1 November 2002.

3. In or about September or October 2002, each of Qantas, Singapore Airlines, Cathay

Pacific and Air New Zealand made an arrangement, or arrived at an understanding (the

“October 2002 Japan Understanding”), with Airlines including Japan Airlines and

Korean Air, containing the following provisions or one or more of them:

(a) the parties would impose a fuel surcharge on Airfreight Services from Japan of

JPY12/kg with effect from 16 October 2002 in the case of Japan Airlines, Singapore

Airlines and Cathay Pacific, from 1 November 2002 in the case of Qantas and

Korean Air and from 16 November 2002 in the case of Air New Zealand; and

(b) the parties would charge this surcharge until they advised otherwise.

4. The arrangement was made, or the understanding was arrived at, at a meeting of the ICAJ

TC3 subgroup held in the N1481 Meeting Room at the Japan Airlines Building on or about

26 September 2002. The parties were present at the meeting and agreed, or agreed by

preceding or subsequent communications, that:

160

8196443_11

(a) each of Japan Airlines, Singapore Airlines and Cathay Pacific would impose a fuel

surcharge of JPY12/kg with effect from 16 October 2002 until they advised

otherwise;

(b) each of Qantas and Korean Air would impose a fuel surcharge of JPY12/kg with

effect from 1 November 2002 until they advised otherwise; and

(c) Air New Zealand would impose a fuel surcharge of JPY12/kg with effect from 16

November 2002 until it advised otherwise.

5. The following respondents imposed a fuel surcharge of JPY12/kg on the supply of

international airfreight services from Japan for the periods indicated:

From on or about, to on or about

Qantas 1 Nov 02 – 31 Jan 04

Singapore Airlines Cargo 16 Oct 02 – unknown

Cathay Pacific 16 Oct 02 - 31 Jan 04

Air New Zealand 16 Nov 02 - 15 Feb 04

CX February 2004 Japan Understanding

6. In or around February 2004, Toshifumi Kawakane (Cathay Pacific) in response to a

request from Lufthansa, communicated with other carriers that were participants at the

Osaka chapter of the TC3 subgroup, which chapter included Japan Air Lines, Korean Air,

Thai Airways International, All Nippon Airways and Nippon Cargo Airlines, asking that

information about their proposed fuel surcharges be provided to other members of the

subgroup so that unnecessary rate competition can be avoided.

DOCUMENTS

The communication from Toshifumi Kawakane was in response to a survey from Mr Yamamoto of Lufthansa in which he sought various information about proposed fuel surcharges.

7. By reason of the matters alleged in the previous paragraph, Cathay Pacific induced or

attempted to induce the other members, or any of them, of the Osaka chapter of the TC3

subgroup to enter into an arrangement or understanding (the “CX February 2004 Japan

Understanding”), containing a provision that each of the parties to the arrangement or

understanding would:

161

8196443_11

(a) advise each of the other parties to the CX February 2004 Japan Understanding prior

to implementing a change to the fuel surcharge which it intended to charge its

Customers for the supply of Airfreight Services from Japan with a commencement

date that would allow enough lead time for the other carriers to announce their

changes before the change was implemented;

(b) maintain or not reduce the amount of the fuel surcharges in relation to the Airfreight

Services from Japan to other ports in TC3, including all Australian ports.

February 2004 Japan Understanding

8. Further or alternatively to paragraphs 6 to 8, in or about November 2003 to February 2004,

each of Qantas, Cathay Pacific and Air New Zealand made an arrangement, or arrived at

an understanding (the “February 2004 Japan Understanding”), with Airlines including

Korean Air, containing the following provisions or one or more of them:


JPY18/kg with effect from 1 February 2004 in the case of Cathay Pacific, Japan

Airlines, Qantas and Korean Air and 16 February 2004 in the case of Air New

Zealand; and


DOCUMENTS

The arrangement was made, or the understanding was arrived at, at a meeting of the ICAJ TC3 subgroup held in the N1481 Meeting Room at the Japan Airlines Building on or about 29 January 2004. The parties were present at the meeting and agreed, or agreed by preceding or subsequent communications, that:

A. each of Cathay Pacific, Japan Airlines, Qantas and Korean Air would impose a fuel surcharge of JPY18/kg with effect from 1 February 2004 until they advised otherwise;

B. Air New Zealand would impose a fuel surcharge of JPY18/kg with effect from 16 February 2004 until it advised otherwise.



162

8196443_11


Qantas 1 Feb 04 – 15 Jul 04

Cathay Pacific 1 Feb 04 - 31 Jul 04

Air New Zealand 16 Feb 04 - 15 Jul 04

July 2004 Japan Understanding

10. In or about May 2004 to July 2004, each of Qantas, Singapore Airlines Cargo, Cathay

Pacific and Air New Zealand made an arrangement, or arrived at an understanding (the

“July 2004 Japan Understanding”), with Airlines including Korean Air containing the

following provisions or one or more of them:


JPY24/kg from 16 July 2004 in the case of Japan Airlines, Singapore Airlines, Air

New Zealand, Qantas and Korean Air and from 1 August 2004 in the case of Cathay

Pacific; and


DOCUMENTS

The arrangement was made, or the understanding was arrived at, in or about May 2004, at a meeting of the ICAJ TC3 subgroup or a local interline air cargo managers meeting held at All Nippon Airway's offices. The parties were present at the meeting and agreed, or agreed by preceding or subsequent communications, that:

A. each of Japan Airlines, Singapore Airlines, Air New Zealand, Qantas and Korean Air would impose a fuel surcharge of JPY24/kg with effect from 16 July 2004 until they advised otherwise;

B. Cathay Pacific would impose a fuel surcharge of JPY24/kg with effect from 1 August 2004 until it advised otherwise.



163

8196443_11


Qantas 16 Jul 04 – 16 Oct 04

Cathay Pacific 1 Aug 04 – unknown

Air New Zealand 16 Jul 04 - 15 Nov 04

May/June 2005 Japan Understanding

12. In or about March 2005 Air New Zealand made an arrangement, or arrived at an

understanding (the “May/June 2005 Japan Understanding”), with Airlines including

Japan Airlines containing the following provisions or one or more of them:


JPY36/kg with effect from 16 May 2005 in the case of Air New Zealand and 1 June

2005 in the case of Japan Airlines; and


DOCUMENTS

The arrangement was made, or the understanding was arrived at in a meeting of the ICAJ TC3 subgroup held at the ANA Conference Room on or about 22 March 2005. The parties were present at the meeting and agreed, or agreed by preceding or subsequent communications, that:

A. Air New Zealand would impose a fuel surcharge of JPY36/kg with effect from 16 May 2005 until it advised otherwise;

B. Japan Airlines would impose a fuel surcharge of JPY36/kg with effect from 1 June 2005 until it advised otherwise.




Air New Zealand 16 May 05 - 31 Oct 05

Japan Airlines 1 Jun 05 – 15 Sep 05

December 2005 Japan Understanding

14. In or about September 2005 to December 2005 each of Cathay Pacific and Air New

Zealand made an arrangement or arrived at an understanding (the “December 2005 Japan

Understanding”), with Airlines including Korean Air containing the following provisions

or one or more of them:

164

8196443_11


JPY48/kg with effect from 1 November 2005 in the case of Korean Air and Cathay

Pacific, and from 1 December 2005 in the case of Air New Zealand; and


15. The arrangement was made, or the understanding was arrived at, or shortly after, a meeting

of the ICAJ TC3 subgroup held in the ANA Meeting Room at the Shiodome City-Center

Building on or about 21 September 2005. The parties were present at the meeting and

agreed, or agreed by subsequent communications, that:

(a) each of Cathay Pacific and Korean Air would impose a fuel surcharge of JPY48/kg

with effect from 1 November 2005 until it advised otherwise;

(b) Air New Zealand would impose a fuel surcharge of JPY48/kg with effect from 1

December 2005 until it advised otherwise.

16. Each of Air New Zealand and Cathay Pacific imposed a fuel surcharge of JPY48/kg on the

supply of international airfreight services from Japan from on or about 1 December 2005.

17. The changes to the fuel surcharge from Japan implemented by Japan Airlines, Air New

Zealand and Cathay Pacific, between 2002 and 2006 were as follows:

Japan Airlines Air New Zealand Cathay Pacific

FSC (JPY)

Start Date End Date (approx)



12 16 Oct 2002 30 Jan 2004 16 Nov 2002 15 Feb 2004 16 Oct 2002 31 Jan 2004

18 1 Feb 2004 15 Jul 2004 16 Feb 2004 15 Jul 2004 1 Feb 2004 31 Jul 2004

24 16 Jul 2004 15 Oct 2004 16 Jul 2004 15 Nov 2004 1 Aug 2004 15 Oct 2004

30 16 Oct 2004 31 May 2005 16 Nov 2004 15 May 2005 16 Oct 2004 15 May 2005

36 1 Jun 2005 15 Sep 2005 16 May 2005 31 Aug 2005 16 May 2005 31 Aug 2005

42 16 Sep 2005 30 Nov 2005 1 Sep 2005 30 Nov 2005 1 Sep 2005 31 Oct 2005

48 1 Dec 2005 30 Jun 2006 1 Dec 2005 15 Aug 2006 1 Nov 2005 31 Jul 2006

54 1 Jul 2006 Oct 2006 16 Aug 2006 Nov 2006 1 Aug 2006 16 Oct 2006

18. The Japan Understanding was comprised of:

(a) the Lufthansa Methodology and Lufthansa Index which, as noted above, were

published on the Lufthansa website;

165

8196443_11

(b) further and in the alternative to subparagraph (a), the price of fuel as published by

the carriers ' fuel suppliers;

(c) communications between, at least, representatives of Japan Airlines, Cathay Pacific,

Singapore Airlines, Air New Zealand, Qantas and Korean Air including those

referred to in paragraphs 4, 8, 10, 12 and 15 of this schedule prior to the imposition

or increase in fuel surcharges (or increases in rates by an amount equal to the fuel

surcharge) which they charged their Customers on the supply of international

airfreight services from and to Japan;

(d) discussions held at meetings of the ICAJ TC3 subgroup held at the offices of Japan

Airlines, All Nippon Airways and Nippon Cargo in the period between March 2002

and September 2005 (and in particular, the meetings referred to in paragraphs 4, 8,

10, 12 and 15 of this schedule) during the course of which representatives of Japan

Airlines, Cathay Pacific, Singapore Airlines, Air New Zealand, Qantas, Korean Air

and other carriers present would:

(i) announce that they intended to impose or increase the fuel surcharge (or

increase their rates by an amount equal to the fuel surcharge) which they

charged their Customers on the supply of international airfreight services from

and to Japan;

(ii) report on their preparations they had taken to impose or increase the fuel

surcharge (or increase their rates by an amount equal to the fuel surcharge)

which they charged their Customers on the supply of international airfreight

services from and to Japan;

(iii) discuss with each other the proposed imposition or increase in the fuel

surcharge (or increase in rates by an amount equal to the fuel surcharge) which

they charged their Customers on the supply of international airfreight services

from and to Japan;

(iv) consider whether to impose or increase the fuel surcharge (or increase their

rates by an amount equal to the fuel surcharge) which they charged their

Customers on the supply of international airfreight services from and to Japan

based on what the other carriers present announced that they proposed to do;

and/or

166

8196443_11

(v) report on any instructions or directions they may have received from their

respective head offices in relation to the imposition or increase in the fuel

surcharge (or increase their rates by an amount equal to the fuel surcharge)

which they charged their Customers on the supply of international airfreight

services from and to Japan.

(e) the conduct of the various carriers including Japan Airlines, Cathay Pacific,

Singapore Airlines, Air New Zealand, Qantas and Korean Air in seeking information

from each other as to proposed fuel surcharge increases and decreases and advising

each other as to the fuel surcharges that the various carriers were charging or

intending to charge.

in the federal court of australia (fca) victoria … · malaysia airlines cargo sdn. bhd.,...

Documents