Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2010] FCA 294

Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2010] FCA 294

Leave to amend the statement of claim was allowed because the applicant's failure to foresee the issue warranted the amendment in light of the public interest in the proper enforcement of the Trade Practices Act and ensuring the matter was resolved on its merits rather than a technicality. The applicant was ordered to pay the respondents’ costs thrown away by reason of the amendment, including those costs pertaining to specific days of hearing vacated by the adjournment.

Parties
Applicant: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION; First Respondent: CEMENT AUSTRALIA PTY LTD ACN 104 053 474; Second Respondent: CEMENT AUSTRALIA HOLDINGS PTY LTD ACN 001 085 561; Third Respondent: CEMENT AUSTRALIA (QUEENSLAND) PTY LTD ACN 009 658 520; Fourth Respondent: POZZOLANIC ENTERPRISES PTY LTD ACN 010 367 898; Fifth Respondent: POZZOLANIC INDUSTRIES PTY LTD ACN 010 608 947; Sixth Respondent: CHRISTOPHER GUY LEON; Seventh Respondent: CHRISTOPHER STEPHEN WHITE
Jurisdiction
Australia
Judgment Date
26 March 2010
Procedural Posture
Civil / Interlocutory—application for Leave to Amend Statement of Claim; Order as to Costs and Adjournment
Outcome
Amendment allowed; trial adjourned; applicant to pay respondents’ costs thrown away and of specified days; all other costs reserved; liberty to apply granted.
Legal Topics
Market Definition (trade Practices Act), Costs Following Amendment and Adjournment, Leave to Amend Pleadings, Public Interest in Regulatory Enforcement
Competition and Consumer Law Civil Procedure Market Definition (trade Practices Act) Costs Following Amendment and Adjournment Leave to Amend Pleadings Public Interest in Regulatory Enforcement

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Parties

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

CEMENT AUSTRALIA PTY LTD ACN 104 053 474

First Respondent

CEMENT AUSTRALIA HOLDINGS PTY LTD ACN 001 085 561

Second Respondent

CEMENT AUSTRALIA (QUEENSLAND) PTY LTD ACN 009 658 520

Third Respondent

POZZOLANIC ENTERPRISES PTY LTD ACN 010 367 898

Fourth Respondent

POZZOLANIC INDUSTRIES PTY LTD ACN 010 608 947

Fifth Respondent

CHRISTOPHER GUY LEON

Sixth Respondent

CHRISTOPHER STEPHEN WHITE

Seventh Respondent

Procedural Posture

Civil / Interlocutory—application for Leave to Amend Statement of Claim; Order as to Costs and Adjournment

Legal Issues

  1. 1 Whether leave should be granted to the applicant to amend its statement of claim to plead a narrower market definition for flyash
  2. 2 Appropriate order for costs and adjournment when late amendment necessitates vacation of trial dates

Ratio Decidendi

Leave to amend the statement of claim was allowed because the applicant's failure to foresee the issue warranted the amendment in light of the public interest in the proper enforcement of the Trade Practices Act and ensuring the matter was resolved on its merits rather than a technicality. The applicant was ordered to pay the respondents’ costs thrown away by reason of the amendment, including those costs pertaining to specific days of hearing vacated by the adjournment.

Court Disposition

Amendment allowed; trial adjourned; applicant to pay respondents’ costs thrown away and of specified days; all other costs reserved; liberty to apply granted.

Orders

  • Applicant to file and serve a second further amended statement of claim by 1 April 2010
  • Respondents have leave to amend their respective defences