Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] FCAFC 159

Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] FCAFC 159

Section 76(1) of the Competition and Consumer Act 2010 (Cth) does not empower the Court to impose a single joint and several pecuniary penalty on multiple respondents for separate acts or omissions. Penalties must be imposed on each contravenor for their individual conduct. In the context of anticompetitive contracts, making and giving effect typically are to be treated as separate acts for penalty purposes unless strong reasons justify single treatment. Estimation of market harm or financial benefit is relevant to penalty but will not be quantified if evidence is insufficient. Applying these principles, the penalties imposed below (joint and several) were set aside and new individual...

Parties
Appellant: Australian Competition and Consumer Commission; First Respondent: Cement Australia Pty Ltd; Second Respondent: Cement Australia (Queensland) Pty Ltd (formerly Queensland Cement Ltd); Third Respondent: Pozzolanic Enterprises Pty Ltd; Fourth Respondent: Pozzolanic Industries Pty Ltd
Jurisdiction
Australia
Judgment Date
05 October 2017
Procedural Posture
Appeal / Appeal Judgment and Orders
Outcome
Appeal allowed; cross-appeal dismissed; penalties imposed by primary judge set aside; new penalties imposed
Legal Topics
Pecuniary Penalties, Anticompetitive Contracts, Market Harm, Financial Benefit, Course of Conduct Principle, Civil Penalties, Section 76 Competition and Consumer Act, Section 45 Competition and Consumer Act
Competition Law Pecuniary Penalties Anticompetitive Contracts Market Harm Financial Benefit Course of Conduct Principle Civil Penalties Section 76 Competition and Consumer Act +1 more

Case Brief

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Parties

Australian Competition and Consumer Commission

Appellant

Cement Australia Pty Ltd

First Respondent

Cement Australia (Queensland) Pty Ltd (formerly Queensland Cement Ltd)

Second Respondent

Pozzolanic Enterprises Pty Ltd

Third Respondent

Pozzolanic Industries Pty Ltd

Fourth Respondent

Procedural Posture

Appeal / Appeal Judgment and Orders

Legal Issues

  1. 1 Whether joint and several penalties may be imposed for contraventions of s 45 and s 76 of the Competition and Consumer Act 2010 (Cth)
  2. 2 How pecuniary penalties should be assessed and imposed for anticompetitive conduct
  3. 3 The appropriate application of the 'course of conduct' principle to multiple contraventions

Ratio Decidendi

Section 76(1) of the Competition and Consumer Act 2010 (Cth) does not empower the Court to impose a single joint and several pecuniary penalty on multiple respondents for separate acts or omissions. Penalties must be imposed on each contravenor for their individual conduct. In the context of anticompetitive contracts, making and giving effect typically are to be treated as separate acts for penalty purposes unless strong reasons justify single treatment. Estimation of market harm or financial benefit is relevant to penalty but will not be quantified if evidence is insufficient. Applying these principles, the penalties imposed below (joint and several) were set aside and new individual...

Court Disposition

Appeal allowed; cross-appeal dismissed; penalties imposed by primary judge set aside; new penalties imposed

Orders

  • The appeal be allowed.
  • The cross-appeal be dismissed.