Australian Competition and Consumer Commission v Ashton Raggatt McDougall Pty Ltd [2023] FCA 351

Australian Competition and Consumer Commission v Ashton Raggatt McDougall Pty Ltd [2023] FCA 351

ARM, through Mr Allen, attempted to contravene s 45AJ of the Competition and Consumer Act 2010 (Cth) by seeking assurances from competing architectural firms not to tender, and Mr Allen attempted to induce such conduct. The conduct met the statutory criteria for attempted cartel conduct and attempted inducement. The penalties and ancillary orders jointly proposed by the parties fell within an appropriate range considering the seriousness of the conduct, absence of harm or previous similar conduct, cooperation, and compliance measures.

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent: Ashton Raggatt McDougall Pty Ltd; Second Respondent: Anthony John Allen
Jurisdiction
Australia
Judgment Date
13 April 2023
Procedural Posture
Civil Enforcement / Post Admissions, Penalty and Ancillary Relief Determination
Outcome
Declarations of attempted cartel conduct and attempted inducement made; pecuniary penalties imposed on ARM and Mr Allen; compliance program and educative notice ordered; costs awarded; penalties to be paid in instalments.
Legal Topics
Cartel Conduct, Attempted Cartel Contravention, Attempted Inducement of Cartel Contravention, Public Sector Procurement, Civil Penalties
Competition Law Commercial Law Cartel Conduct Attempted Cartel Contravention Attempted Inducement of Cartel Contravention Public Sector Procurement Civil Penalties

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Parties

Australian Competition and Consumer Commission

Applicant

Ashton Raggatt McDougall Pty Ltd

First Respondent

Anthony John Allen

Second Respondent

Procedural Posture

Civil Enforcement / Post Admissions, Penalty and Ancillary Relief Determination

Legal Issues

  1. 1 Whether ARM attempted to contravene s 45AJ of the Competition and Consumer Act 2010 (Cth) by seeking non-competition from architectural firms in tendering for a public contract
  2. 2 Whether Mr Allen attempted to induce contravention of s 45AJ
  3. 3 Whether the jointly proposed penalties are appropriate

Ratio Decidendi

ARM, through Mr Allen, attempted to contravene s 45AJ of the Competition and Consumer Act 2010 (Cth) by seeking assurances from competing architectural firms not to tender, and Mr Allen attempted to induce such conduct. The conduct met the statutory criteria for attempted cartel conduct and attempted inducement. The penalties and ancillary orders jointly proposed by the parties fell within an appropriate range considering the seriousness of the conduct, absence of harm or previous similar conduct, cooperation, and compliance measures.

Court Disposition

Declarations of attempted cartel conduct and attempted inducement made; pecuniary penalties imposed on ARM and Mr Allen; compliance program and educative notice ordered; costs awarded; penalties to be paid in instalments.

Orders

  • ARM to pay a pecuniary penalty of $900,000 under s 76(1) CCA, to be paid in six instalments over five years.
  • ARM to establish and maintain a compliance program for three years.