ACCC v J Hutchinson Pty Ltd (No 2)

Australian Competition and Consumer Commission v J Hutchinson Pty Ltd (No 2) [2022] FCA 1007

Federal Court of Australia
QUD 374 of 2020
Judgment: 30 August 2022
Justice Downes

Catchwords

COMPETITION LAW – application by regulator for pecuniary penalties and other relief arising from findings of liability in previous decision – where findings and declarations made that construction company had contravened ss 45E(3) and 45EA Competition and Consumer Act 2010 (Cth) – where findings and declarations made that union was knowingly concerned in, or party to, the contraventions and had induced them within the meaning of s 76 Competition and Consumer Act 2010 (Cth) – consideration of factors relevant to pecuniary penalty under s 76 – whether s 76(3) applied in relation to union in circumstances where separate contraventions related to the same conduct – whether injunction should be granted pursuant to s 80 – where injunction sought against construction company in same terms as legislation – where injunction sought against union which would impose legal obligation not contained in the legislation – whether respondents should be ordered to implement a competition law compliance program – where compliance program was disproportionate – where compliance program did not have sufficient nexus to contravening conduct – where requirements of compliance program were not expressed with sufficient precision – where adverse publicity order made

Legislation (relevant)

Competition and Consumer Act 2010 (Cth) ss 45D, 45E, 45EA, 76, 80, 86C, 86D, Sch 2 s 224

Cases cited

A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union (2007) 165 IR 94; [2007] FCA 1047

Australian Building and Construction Commission v Construction, Forestry, Maritime, Mining and Energy Union (2020) 302 IR 139; [2020] FCA 1662

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262; [2019] FCAFC 59

Australian Building and Construction Commissioner v Dig It Landscapes Pty Ltd [2017] FCCA 2128

Australian Building and Construction Commissioner v Pattinson (2022) 175 ALD 383; [2022] HCA 13

Australian Building and Construction Commissioner v Rielly (No 2) [2021] FCCA 43

Australian Building Construction Commissioner v Pauls [2017] FCA 843

Australian Competition & Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 95 FCR 114; [1999] FCA 1387

Australian Competition & Consumer Commission v Renegade Gas Pty Ltd (trading as Supagas NSW) [2014] FCA 1135

Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) (2007) 161 FCR 513; [2007] FCAFC 146

Australian Competition and Consumer Commission v J Hutchinson Pty Ltd [2022] FCA 98

Australian Competition and Consumer Commission v Jetplace Pty Ltd [2010] FCA 759

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181

Australian Competition and Consumer Commission v Sontax Australia (1988) Pty Ltd [2011] FCA 1202

Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (2007) ATPR 42-140; [2006] FCA 1730

Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (No 2) [2017] FCA 1191

Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243; [2018] FCAFC 73

Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd [1997] FCA 871; (1997) 78 FCR 197

Australian Securities and Investments Commission v Wooldridge [2019] FCAFC 172

Commissioner of Taxation v Bogiatto (No 2) [2021] FCA 98

Commodore Business Machines Pty Limited v Trade Practices Commission [1990] FCA 84; (1990) 92 ALR 563

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Palmerston Police Station Case) [2021] FCAFC 7

Construction, Forestry, Maritime, Mining and Energy Union v Richard Crookes Constructions Pty Ltd [2022] FCA 992

Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCA 846

Director, Fair Work Building Inspectorate v J Hutchinson Pty Ltd [2016] FCCA 2175

NW Frozen Foods Proprietary Limited v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Trade Practices Commission v CSR Ltd [1990] FCA 521; (1991) ATPR 41-076

viagogo AG v Australian Competition and Consumer Commission [2022] FCAFC 87

Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 284 FCR 24; [2021] FCAFC 49

Parties

J Hutchinson Pty Ltd (First Respondent)

Construction, Forestry, Maritime, Mining and Energy Union (Second Respondent)

Decision

Respondents found to have engaged in contravening conduct.