Toll Holdings Ltd v Australian Competition and Consumer Commission [2009] FCA 462

Toll Holdings Ltd v Australian Competition and Consumer Commission [2009] FCA 462

The undertaking was to be construed as a statutory instrument according to ordinary meaning and purpose. On the ordinary meanings of 'share' and 'second', and consistently with the undertaking's purpose of maintaining complete separation between Toll and Asciano to address competition concerns, Toll Personnel's provision of labour hire employees to Asciano amounted to sharing employees with Asciano and seconding employees to Asciano. Clause 2.9(j) imposed separate arm's length obligations and did not narrow cll 2.9(h) and 2.9(i). The labour hire arrangements therefore contravened cll 2.9(h)(i), 2.9(h)(ii), 2.9(i)(i) and 2.9(i)(ii), so the declaratory relief sought failed.

Jurisdiction
Australia
Judgment Date
11 May 2009
Procedural Posture
Application for Declaratory Relief and Judicial Review Concerning Alleged Breach of an Undertaking Given Under S 87 B of the Trade Practices Act 1974 (cth) / Final Judgment After Hearing; Claim Concerning Refusal to Vary the Undertaking Abandoned
Outcome
Application dismissed; applicants ordered to pay the respondent's costs of the proceeding.
Legal Topics
['construction of S 87 B Undertaking' 'labour Hire Arrangements' 'sharing or Secondment of Employees' "arm's Length Dealings" 'judicial Review of Refusal to Vary Undertaking']
['trade Practices' 'competition Law' 'administrative Law' 'statutory Interpretation'] ['construction of S 87 B Undertaking' 'labour Hire Arrangements' 'sharing or Secondment of Employees' "arm's Length Dealings" 'judicial Review of Refusal to Vary Undertaking']

Case Brief

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Procedural Posture

Application for Declaratory Relief and Judicial Review Concerning Alleged Breach of an Undertaking Given Under S 87 B of the Trade Practices Act 1974 (cth) / Final Judgment After Hearing; Claim Concerning Refusal to Vary the Undertaking Abandoned

Legal Issues

  1. 1 ["Whether Toll Personnel's labour hire services to Asciano constituted Toll sharing management or employees with Asciano or seconding management or employees to or from Asciano within cll 2.9(h) and 2.9(i) of the undertaking." 'Whether the undertaking should be construed like a commercial contract or as a statutory instrument.' "Whether cl 2.9(j), concerning arm's length dealings, restricted the operation of cll 2.9(h) and 2.9(i)."]

Ratio Decidendi

The undertaking was to be construed as a statutory instrument according to ordinary meaning and purpose. On the ordinary meanings of 'share' and 'second', and consistently with the undertaking's purpose of maintaining complete separation between Toll and Asciano to address competition concerns, Toll Personnel's provision of labour hire employees to Asciano amounted to sharing employees with Asciano and seconding employees to Asciano. Clause 2.9(j) imposed separate arm's length obligations and did not narrow cll 2.9(h) and 2.9(i). The labour hire arrangements therefore contravened cll 2.9(h)(i), 2.9(h)(ii), 2.9(i)(i) and 2.9(i)(ii), so the declaratory relief sought failed.

Court Disposition

Application dismissed; applicants ordered to pay the respondent's costs of the proceeding.

Orders

  • ['The application be dismissed.' "The applicants pay the respondent's costs of the proceeding."]