ACCC v Cascade Coal (FCA)
Federal Court of Australia
Justice Foster
ACCC v Cascade Coal Pty Ltd (No 3) [2018] FCA 1019 (6 July 2018)
Related judgment
[2019] FCAFC 154 (appeal dismissed)
Issues: Bid rigging - boycotts - exclusionary provisions - in competition- competitors
Key words
COMPETITION – cartel conduct – whether the corporate respondents made a contract or arrangement or arrived at an understanding containing a cartel provision in respect of the application process for exploration licences for coal in the Mt Penny and Glendon Brook areas of NSW – whether, in the circumstances, the corporate respondents were competitors or likely competitors – whether the corporate respondents had the proscribed anti-competitive purpose – whether any of the respondents gave effect to the alleged cartel provision
COMPETITION – contracts, arrangements or understandings that restrict dealings or affect competition – whether the corporate respondents made a contract or arrangement or arrived at an understanding containing an exclusionary provision – whether the provision was entered into for the purposes of preventing, restricting or limiting the supply or acquisition of specified services – whether any of the respondents gave effect to the alleged exclusionary provision
COMPETITION – joint venture defences – whether the alleged exclusionary provision is for the purposes of a joint venture – whether other elements of s 76C defence established – whether the alleged cartel provision was for the purposes of a joint venture – whether the elements of s 44ZZRP defence to the making of the alleged cartel provision were made out
Summary
Concerned an alleged understanding in connection with a competitive expression of interest relating to exploration licences for coal areas in NSW.
Primary judge found the EOI understanding contained a provision where by Buffalo Resources Pty Ltd would procure withdrawal of expressions of interest made by another party, but that this did not contravene s 4D and 45(2)(a)(i) (primary boycotts) because:
Cascade was not competitive with the relevant parties as required;
the withdrawal provision did not have the purpose of ‘preventing, restricting or limiting the supply or acquisition of services from particular persons or classes of persons by parties to the relevant contract, arrangement or understanding as required by the then s 4D’;
the joint venture defence under s 76C would have been made out in any event.
As a result, even if primary liability was established the respondents would have had a defence under s 76C for any s 45(2)(a)(i) contravention.
Post
The ACCC’s appeal was dismissed.