Australian Competition and Consumer Commission v Delta Building Automation Pty Ltd [2023] FCA 880

Australian Competition and Consumer Commission v Delta Building Automation Pty Ltd [2023] FCA 880

The Court found that during the 18 December 2019 meeting, Mr Davis, as director of Delta, offered a payment to the competitor LES for not genuinely competing in the NGA BMS upgrade tender, intending to induce or make an arrangement or understanding containing a cartel provision as proscribed by the Competition and Consumer Act. This constituted attempted contravention and attempted inducement under s 45AJ of the Act, as Mr Davis took steps beyond preparatory conduct and intended to bring about bid rigging or price fixing. Contraventions of competition law attempts provisions were established on the evidence.

Jurisdiction
Australia
Judgment Date
01 August 2023
Procedural Posture
Civil Proceeding / Liability Adjudication
Outcome
Contraventions established; matter proceeds to remedies phase.
Legal Topics
['cartel Conduct' 'bid Rigging' 'attempted Contravention' 'inducement' 'civil Penalties']
['competition Law' 'commercial Law'] ['cartel Conduct' 'bid Rigging' 'attempted Contravention' 'inducement' 'civil Penalties']

Case Brief

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Procedural Posture

Civil Proceeding / Liability Adjudication

Legal Issues

  1. 1 ['Whether Delta Building Automation Pty Ltd and Timothy Dixon Davis attempted to make or induce the making of an arrangement or understanding containing a cartel provision contrary to s 45AJ of the Competition and Consumer Act 2010 (Cth)' 'Whether the alleged conduct constituted attempted bid rigging in a tender process for the National Gallery of Australia BMS upgrade contract' 'Whether the offer to make a payment to a competitor was an attempt to induce or make an arrangement or understanding containing the relevant cartel provision']

Ratio Decidendi

The Court found that during the 18 December 2019 meeting, Mr Davis, as director of Delta, offered a payment to the competitor LES for not genuinely competing in the NGA BMS upgrade tender, intending to induce or make an arrangement or understanding containing a cartel provision as proscribed by the Competition and Consumer Act. This constituted attempted contravention and attempted inducement under s 45AJ of the Act, as Mr Davis took steps beyond preparatory conduct and intended to bring about bid rigging or price fixing. Contraventions of competition law attempts provisions were established on the evidence.

Court Disposition

Contraventions established; matter proceeds to remedies phase.

Orders

  • ['The parties are to confer and within 14 days submit agreed or competing draft orders as to declarations of contravention and procedural orders for the conduct of the remedies phase.']